UC-NRLF 


462 
G77 


DECISIONS  AND  OPINIONS 


OF  THE 


AND 


GRAND  ARMY  OF  THE  REPUBLIC 


COMPILED  AND  ARRANGED 

By  JAMES  R.  CARNAHAN, 

COMMANDER  DEPARTMENT  OF  INDIANA  G.   A.   R.   FEBRUARY  22,   1882,  TO  l£ 
JUDGE  ADVOCATE-GENERAL  1882-1883. 


INDIANAPOLIS  : 

HASSELMAN- JOURNAL  CO.  PRINT, 
1884. 


DECISIONS  AND  OPINIONS 


COMMANDERS-IN-CHIEF 


JUDGE  ADVOCATES-GENERAL 


QRAND  ARMY  OF  THE  REPUBLIC. 


REPORTED  TO,  AND  APPROVED  BY,  THE  NATIONAL  ENCAMPMENTS  FROM 

THE  FIRST,  TO  AND  INCLUDING  THE  SEVENTEENTH 

NATIONAL  ENCAMPMENT,  JULY,  1883. 


COMPILED   AND   ARRANGED   ACCORDING   TO   DATE   OF   RENDITION,    WITH    SYLLABUS 
AND   DIGEST, 

By  JAMES  R.  CARNAHAN, 

COMMANDER   DEPARTMENT   OF   INDIANA   G.    A.    R.    FEBRUARY    22,    l8Se   TO    1884, 
JUDGE   ADVOCATE-GENERAL   1882-1883. 


Adopted  and  Approved  by  the  National  Encampment,  July,  1883. 


INDIANAPOLIS: 

HASSELMAN-JOURNAL   CO.,    PRINTERS. 
l884. 


INTRODUCTORY. 


The  following  report  was  made  to  the  Seventeenth  Na 
tional  Encampment,  held  at  Denver,  Colorado,  July,  1883  : 

OFFICE  OF  JUDGE  ADVOCATE-GENERAL, 

INDIANAPOLIS,  IND.,  June  27,  1883. 

GEN.  PAUL  VAN  DER  VOORT, 

Commander-in- Chief   G.  A.  R.: 

SIR  AND  COMRADE — I  have  the  honor  to  report  to  you,  and 
through  you  to  the  Comrades  of  the  National  Encampment,  the 
work  that  has  been  done  by  this  office  during  the  year  which  I 
have  had  the  honor  to  act  as  the  Judge  Advocate-General,  and 
which  is  now  just  closing. 

In  conformity  with  instructions  of  the  National  Encampment 
held  at  Baltimore  in  June,  1882,  I  have  compiled  all  the  opin 
ions  of  Judge  Advocates-General,  from  the  organization  of  the 
Grand  Army  up  to  the  present  date.  I  have  arranged  them  in 
their  order  as  rendered,  and  numbered  them  consecutively  from 
I  to  CXLV.  For  each  of  the  opinions  I  have  prepared  a  sylla 
bus,  and  have  also  prepared  an  index  and  digest  for  the  entire 
work,  referring  to  the  opinion  by  number  and  page  of  the  work. 
During  the  year  I  have  rendered  fifteen  opinions  on  subjects 
referred  to  me  from  National  Headquarters.  These  opinions  are 
embraced  in  the  compilation  herewith  sent  you,  and  are  num 
bered  from  CXXXI  to  CXLV,  inclusive.  I  have  performed  this 
work  in  accordance  with  the  order  of  the  last  National  Encamp 
ment  in  so  far  as  the  preparation  of  a  syllabus  was  ordered ;  but, 
believing  that  a  syllabus  alone  would  not  meet  the  needs  of  the 
Grand  Army,  I  collected  all  the  decisions  of  my  predecessors, 
that  the  Comrades  might  not  only  have  the  outline,  but  the  full 
text  of  the  opinions  and  decisions  which  are  now  a  part  of  the 


902976 


INTRODUCTORY. 


law  governing  the  Grand  Army.     I  herewith  submit  the  same  for 
your  approval. 

Thanking   the   Commander-in-Chief   and    the    members    and 
Comrades  of  the  staff  for  courtesies  shown, 
I  am  yours  in  F.  C.  and  L. , 

JAS.  R.  CARNAHAN, 

Judge  Advocate- General. 


The  report  of  the  committee  on  the  Judge  Advocate- 
General's  report  was  read  and  adopted.  The  report  is  as 
follows : 

DENVER,  COL.,  July  26,  1883. 
To  the  National  Encampment  of  the   G.  A.  R.: 

Your  committee  on  the  report  of  the  Judge  Advocate-General 
would  respectfully  report  that,  after  a  careful  examination  of  said 
report  and  the  digest  of  opinions  accompanying  the  same,  they 
cordially  recommend  that  said  digest  of  opinions  be  accepted 
and  approved  as  the  law  of  the  Grand  Army  of  the  Republic 
upon  the  subjects  therein  treated.  In  the  opinion  of  the  com 
mittee  the  compilation  is  one  of  learning,  research  and  ability, 
bringing  the  common  law  of  our  organization  in  a  palpable  and 
comprehensible  form  before  our  Comrades,  and  gathering  to 
gether  and  formulating  rules  for  the  determination  of  questions 
which  may  arise  hereafter,  which  will  be  invaluable  to  the  Order 
by  reason  of  their  simplicity,  directness  and  accessibility. 

HENRY  E.  TAINTOR, 
W.  R.   MANNING, 
W.  F.  CHAMBERLAIN, 
CHARLES  W.  BLAIR, 
JOHN  P.  REA, 

Committee. 

After  the  adjournment  of  the  Seventeenth  National  En 
campment  the  following  correspondence  was  had,  and  ex 
plains  the  re-publishing  of  this  volume  of  the  DECISIONS 
AND  OPINIONS  OF  THE  COMMANDERS-IN-ClIIEF  AND 
JUDGE  ADVOCATES-GENERAL: 


INTRODUCTORY. 


HEADQUARTERS  GRAND  ARMY  OF  THE  REPUBLIC, 
No.  1202  CHESTNUT  ST.,  PHILADELPHIA,  Sept.  5,  1883. 

GEN.  JAS.  R.  CARNAHAN, 

Indianapolis,  Ind.: 

DEAR  COMRADE — I  find  that  it  is  necessary  to  reprint  the  di 
gest  of  decisions  prepared  by  you  under  resolution  of  the  Na 
tional  Encampment  at  Baltimore,  in  order  that  all  our  Posts  and 
National  and  Department  officers  may  be  supplied  with  copies 
of  this  valuable  book  for  reference. 

As  the  work  has  so  lately  left  your  hands,  and  you  are  so 
thoroughly  familiar  with  what  is  needed,  I  would  ask  whether 
you  have  any  changes  to  suggest  therein,  and  whether  you  could 
give  the  time  to  preparing  the  matter  for  the  printer. 

We  shall  need  a  large  edition,  and  it  is  well  now  to  have  the 
work  as  complete  as  it  can  be  made. 

Yours  in  F.  C.  and  L. , 

ROBT.  B.  BEATH, 

Commander-in-  Chief. 


INDIANAPOLIS,  IND.,  Dec.  i,  1883. 
GEN.  ROBT.  B.  BEATH, 

Commander-in- Chief  G.  A.  R.: 

COMRADE — In  response  to  your  request  of  September  5th,  I 
have  revised  for  re-publication  the  opinions  of  the  Judge  Advo 
cates-General.  I  deemed  it  advisable,  as  a  matter  of  conveni 
ence,  to  set  out  also  such  portions  of  the  Rules  and  Regulations 
as  were  referred  to  in  the  opinions.  I  have  added  to  my  orig 
inal  work  such  decisions  as  have  been  rendered  by  the  Com- 
manders-in-Chief  of  the  Grand  Army,  and  also  the  rules  govern 
ing  Courts  Martial.  I  have  revised  and  enlarged  the  digest, 
making  it  more  complete  than  in  the  first  edition. 

Fraternally, 

JAMES  R.  CARNAHAN, 

Commander   Dept.  Indiana   G.  A.  R. 
Late  Judge  Advocate- General  G.  A.  R. 


OPINIONS. 


OPINION  I.     July  i,  1871. 

1.  Rules  and  Articles  of  War — A  part  of  the  laws  of  the  land. 

2.  Charges — All  charges  must  be  tried  by  Court  Martial. 

3.  Exception  —Member  may  be  dropped  for  arrears. 

The  question  is  proposed  to  me :  "Can  a  member  of  the 
Grand  Army  of  the  Republic  be  dishonorably  discharged 
therefrom  without  trial  by  Court  Martial,  and  if  so,  by  what 
mode  of  proceeding?" 

The  facts  which  require  an  opinion  constitute  an  extreme  case. 
A  Comrade  of  this  Order,  being  in  the  service  of  the  United 
States,  deserted  from  that  service,  was  apprehended,  and  is  now 
awaiting  trial  by  general  Court  Martial. 

The  Rules  and  Articles  of  War  are,  to  persons  in  the  military 
service  of  the  United  States,  a  part  of  the  laws  of  the  land,  in 
the  intent  of  Chapter  V,  Article  VI,  Section  i,  Paragraph  3,  of  the 
Revised  Rules  and  Regulations  of  the  Grand  Army  of  the  Repub 
lic.  Desertion  from  the  United  States  army  is  one  of  the  gravest 
offenses  known  to  military  law,  and  when  committed  by  a  mem 
ber  of  the  Grand  Army  of  the  Republic  constitutes  one  of  the 
offenses  recognized  by  the  paragraph  referred  to.* 


*ARTICLE  VI,  CHAPTER  V,  RULES  AND  REGULATIONS. 

DISCIPLINE. 

SECTION  i.  Offenses  cognizable  by  the  Grand  Army  of  the  Republic 
shall  be : 

First — Disloyalty  to  the  United  States  of  America,  or  any  other  violation 
of  the  pledge  given  at  the  time  of  muster. 

Second — Disobedience  of  the  Rules  and  Regulations,  or  of  lawful  orders. 

Third — The  commision  of  a  scandalous  offense  against  the  laws  of  the 
land. 

Fourth — Conduct  unbecoming  a  soldier  and  a  gentleman  in  his  relation 
to  the  Grand  Army  of  the  Republic.  , 


OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


The  National  Encampment,  following  the  enlightened  princi 
ples  of  modern  criminal  codes,  has  provided  for  the  trial  of  all 
charges  against  members  of  the  Order  by  courts  composed  of 
their  Comrades,  before  whom  the  accused  may  have  opportunity 
to  be  heard,  if  they  desire  to  appear  and  contest  the  accusations 
brought  against  them.  See  Rules  and  Regulations,  Chapter  V, 
Article  VI,  Sections  3  and  4,  set  out  with  this  opinion. 

The  only  exception  to  the  regulation  requiring  trial  and  sen 
tence  of  a  Court  Martial  to  precede  the  expulsion  of  a  member  of 
the  Order,  is  found  in  the  amendment  to  Section  4,  Article  III, 
of  the  same  Chapter,  passed  at  the  May  session  of  the  National 
Encampment,  A.  D.  1871,  providing  that,  if  a  member  be  one 
year  in  arrears  in  the  payment  of  dues,  he  shall  be  dropped  from 
the  rolls,  which  is  obviously  not  applicable  in  this  case. 

NOTE— See  Opinion  XXXVI. 

Fifth — Conduct  prejudicial  to  good  order  and  discipline. 

SEC.  3.  All  accusations  shall  be  made  in  the  form  of  charges  and  speci 
fications,  and  shall  be  tried  by  Courts  Martial.  Courts  Martial  may  be  or 
dered  by  Commanders  of  Posts  or  of  Departments,  or  by  the  Commander- 
in-Chief,  for  the  trial  of  alleged  offenders  in  their  respective  jurisdictions. 
Members  of  Department  Encampments  and  officers  of  Department  Staffs 
shall  only  be  tried  by  courts  convened  by  order  of  the  Department  Com 
mander,  or  higher  authority.  Members  of  the  National  Encampment  and 
officers  of  the  National  Staff  shall  only  be  tried  by  courts  convened  by  or 
der  of  the  Commander-in-Chief. 

SEC.  4.  Courts  Martial  shall  be  governed  in  their  mode  of  proceeding 
and  rules  of  evidence  by  the  Revised  United  States  Army  Regulations  and 
established  military  usage,  and  such  orders  as  may  be  issued  from  Head 
quarters  :  Provided,  however,  That  in  the  willful  absence  of  the  accused,  after 
due  notice  of  the  time  and  place  of  trial  has  been  given  to  him,  or  left  at  his 
usual  place  of  abode,  the  court  may  proceed  in  all  respects  as  if  he  were  pres 
ent  and  had  pleaded  "not  guilty." 

The  following  rule  was  adopted  by  the  National  Encampment, 
1879.  See  Rules  for  Court  Martial  herein : 

"  From  and  after  promulgation  hereof,  no  Post  Courts  Martial  shall  be  con 
vened,  except  when  the  same  shall  have  been  ordered  by  a  majority  vote  of 
the  Post  of  which  the  accused  shall  be  a  member,  or  of  the  Post  under  whose 
jurisdiction  or  control  he  shall  be  at  the  time,  or  by  the  Department  Com 
mander." 

For  Court  Martial  proceeding,  see  Rules  for  Court  Martial,  herein. 

NOTE— See  Opinion  XXIII.  • 


OF   THE   GRAND    ARMY   OF   THE    REPUBLIC. 


OPINION  II,     JULY  3,  1871. 

1.  The  National  Encampment  only  can  suspend  any  part  of  the  Rules. 

2.  Department  Commander  may  detail  staffofficer  to  receive  one  into  the  Order. 

3.  Regulations  do  not  require  admission  fee  to  accompany  application.     When  paid,  it  becomes 

the  property  of  the  Post.     Post  has  power  to  remit. 

Charles  Prego,  a  soldier  in  the  United  States  army, 
made  application  to  join  McRae  Post,  No.  I,  Department 
of  New  Mexico,  located  at  Santa  Fe,  and  before  his  applica 
tion  could  be  acted  on,  in  order  to  re-enlist  in  the  army,  he 
was  obliged  to  remove  from  the  vicinity  of  the  Post ;  and 
when  he  was  notified  of  his  election,  he  was  serving  in 
Company  H,  Fifteenth  Infantry,  about  two  hundred  miles 
from  Santa  Fe.  He  was,  therefore,  unable  to  present  him 
self  for  muster  within  the  three  months  limited  by  the 
Regulations. 

The  questions  are  asked,  "Can  the  second  clause  of 
Section  7,  Article  II,  Chapter  II,  of  the  Rules  and  Regu 
lations  be  suspended  in  his  case?"  and,  secondly,  "Can 
the  Post  remit  the  forfeiture  of  the  admission  fee  which  ac 
companied  his  application?" 

i.  The  first  question  is  answered  by  Article  XV  of  Chapter 
V,  Rules  and  Regulations,  which  gives  the  power  to  suspend 

*SECTION    7,  ARTICLE   II,  CHAPTER    II,    RULES   AND 
REGULATIONS. 

SECTION  7.  Each  applicant,  upon  his  election,  shall  be  at  once  notified 
thereof  in  writing,  and  on  presenting  himself  for  membership  shall  be  prop 
erly  mustered.  But  unless  he  present  himself  for  muster  within  three 
months  from  the  date  of  such  notice,  his  election  shall  be  void,  and  all  mon 
eys  which  may  have  been  required  by  the  Post  to  accompany  the  application 
shall  be  forfeited  to  the  Post  treasury. 

AMENDMENT    BY    NATIONAL    ENCAMPMENT,    1872. 

The  Commander-in-Chief  or  a  Department  Commander  may,  however, 
grant  a  dispensation  in  any  particular  case,  to  a  Post,  to  muster  a  candidate, 
even  though  he  has  not  presented  himself  for  muster  within  three  months 
after  notice  of  election. 


10  OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


any  part  of  the   Rules  to  the  National  Encampment  alone,  by 
unanimous  vote,  at  the  annual  meeting. f 

2.  It  is  suggested,  however,  that  though  the  election  of  Mr. 
Prego  is  void,  it  is  within  the  power  of  the   Department  Com 
mander  to  detail  a  staff  officer  to  receive  him  into  the  Order, 
provided  he  is  at  a  distance  from  any  Post,  if,  in  the  opinion  of 
the   Department  Commander,  such   action  is   desirable.     After 
being  mustered  into  the  Grand  Army  of  the  Republic,  Mr.  Prego 
would  be  able  to  join  the  Post,  without  necessarily  being  present. 
It  would,  perhaps,  be  better  for  the  applicant,  if  he  is  likely  to 
be  ordered  to  Santa  Fe,  to  wait  until  he  arrives  there,  and  then 
renew  his  application  for  membership.  J 

3.  The  second  question  is  not  directly  answered  by  the  Reg 
ulations.     The   money  forwarded  is  forfeited,  and  has   become 
the  property  of  the  Post ;    but  the  forfeiture  is  not  of  the  nature 
of  a  punishment  for  misdemeanor — the  rule  requiring  the  admis 
sion  fee  to  accompany  the  application  being  rather  intended  to 
secure  a  pledge  that  the  application  is  made  in  good  faith.     The 
Regulations  do  not  require  the  admission  fee  to  be  forwarded 
with  the  application,  but  only  that  it  shall  be  paid  before  enlist 
ment  and   muster.     It  was   forwarded   in   the   present   case   in 
accordance  with  a  By- Law  of  the  Post.     The  money  being  now 
the  property  of  the  Post,  and   entirely  under  their  control,  the 
Post  may  appropriate  from  their  funds  an  equal  amount  to  the 

fARTICLE  XV,  CHAPTER  V. 

ALTERATIONS    AND    AMENDMENTS.* 

The  Rules  and  Regulations,  and  the  Ritual  of  the  Grand  Army  of  the 
Republic,  shall  only  be  altered  or  amended  by  the  National  Encampment, 
by  a  two-thirds  vote  of  the  members  present  at  a  regular  annual  meeting 
thereof.  But  any  section  herein  may  be  suspended,  for  the  time  being,  at 
any  annual  meeting  of  the  National  Encampment,  by  a  unanimous  vote. 

*Proposed  amendments  to  Rules  and  Regulations  must  be  presented  to  the  Adjutant  Gen 
eral  in  time  to  furnish  each  member  a  copy  at  least  thirty  days  before  the  Annual  Encampment. 
Resolution  of  Encampment,  June  18,  1879. 

^SECTION  9,  ARTICLE  II,  CHAPTER  II. 

SECTION  3.  The  Commander-in-Chief  or  a  Department  Commander,  may, 
at  pleasure,  receive  and  muster  in  an  applicant  for  membership,  or  detail  a 
Comrade  for  that  purpose,  provided  the  person  so  received  and  mustered  in 
resides  outside  the  proper  territorial  limits  of  any  Post. 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.     11 


sum  paid  by  the  applicant,  if  they  desire  to  relieve  him  from  the 
pecuniary  loss  which  he  has  unfortunately  incurred.  I  am  the 
more  confident  in  this  expression  of  opinion  from  the  spirit  of 
the  provision  of  Section  3,  Article  IV,  Chapter  V,  which  spe 
cifically  gives  to  any  Post  the  .power  to  remit  the  dues  of  mem 
bers  who  are  unable,  by  reason  of  sickness  or  misfortune,  to  pay 
them.* 


OPINION  III,  AUGUST  u,    1871. 

1.  A  Comrade  may  demand  transfer — Post  can  place  no  restrictions  thereon. 

2.  Request  for  transfer  card  may  be  by  written  application. 

The  facts  will  sufficiently  appear  in  the  opinion. 

i.  I  am  of  the  opinion  that  Section  2,  Article  IV,  Chapter  II, 
of  the  Rules  and  Regulations  gives  to  any  member  in  good  stand 
ing,  whose  dues  are  paid,  the  right  to  demand  a  transfer  paper, 
and  that  no  Post  can  impose  any  restriction  upon  his  right  in  the 
form  of  a  fee  or  otherwise.! 


*SECTION  3,  ARTICLE  IV,  CHAPTER  V. 

SECTION  3.  Any  member  of  a  Post  who  is  six  months  in  arrears  in  the 
payment  of  his  dues,  shall  be  prohibited  from  voting,  shall  be  ineligible  to 
any  office  in  the  Grand  Army  of  the  Republic,  and  shall  be  reported  "  sus 
pended"  in  the  quarterly  reports  to  Department  Headquarters  until  such  dues 
are  paid.  While  so  suspended  the  Post  shall  not  be  subject  to  the  per  capita 
tax  on  such  member,  and  he  shall  not  be  counted  in  the  representation  of  the 
Post  in  the  Department  Encampment,  nor  of  the  Department  in  the  National 
Encampment.  Provided,  however,  That  when  a  Comrade  is  unable  by  rea 
son  of  sickness,  or  misfortune,  to  pay  his  dues,  they  may  be  remitted  by  a 
two-thirds  vote  of  the  members  present  and  voting  at  a  regular  meeting  of 
the  Post;  but  by  this  remission  of  dues  the  Post  shall  not  become  liable  for 
the  payment  of  his  per  capita  tax,  nor  shall  he  be  counted  in  the  representa 
tion  to  the  Department  or  National  Encampment. 

fSECTION  2,  ARTICLE  IV,  CHAPTER  II. 

SECTION  2.  Any  Comrade  against  whom  no  charge  exists,  and  who  has 
paid  all  dues,  shall  receive,  upon  verbal  or  written  application  to  the  Com 
mander,  at  a  meeting  of  the  Post,  a  transfer  card,  attested  by  the  Adjutant. 


12  OPINIONS   OF    JUDGE   ADVOCATES-GENERAL 


2.  It  is  also  my  opinion  that  Section  3  of  the  same  Article 
does  not  require  a  personal  application,* but  that  a  written  appli 
cation  is  sufficient.  The  requirement  that  the  application  shall 
be  made  at  a  regular  meeting  is  doubtless  designed  to  give  such 
publicity  to  the  desire  of  the  Comrade  to  withdraw,  that  any  facts 
affecting  his  good  standing  may  become  known,  f 


OPINION  IV,  AUGUST   n,   1871. 

i.     Involuntary  service  in  the  Rebel  army  forms  no  exception  to  Section  i,  Article  IV,  Chapter  I, 
Rules  and  Regulations. 

i.  The  case  of  an  applicant  for  admission  to  the  Grand 
Army,  who  had  been,  in  the  early  part  of  the  war,  forced  into 
the  Rebel  service,  comes  directly  within  the  letter  and  spirit  of 
the  second  clause  of  Section  i,  Article  IV,  Chapter  I,  of  the 
Rules  and  Regulations:  "And  no  person  shall  be  eligible  to 


Upon  presentation  of  it  to  any  Post  within  one  year  from  the  date  of  its  is 
sue,  he  may  be  admitted  in  the  manner  prescribed  in  Article  III  of  this 
Chapter.  In  the  meantime  he  shall  remain,  for  purposes  of  discipline  only, 
under  the  jurisdiction  of  the  Post  granting  the  transfer  card.  If,  at  the  ex 
piration  of  a  year,  he  has  not  been  admitted  to  membership  in  any  Post,  the 
transfer  card  shall  be  void,  and  the  holder  be  considered  as  honorably  dis 
charged  from  the  Order. 

fSECTION  3,  ARTICLE  IV,  CHAPTER  II. 

SECTION  3.  Any  Comrade  in  good  standing,  on  application  to  the  Post 
Commander,  at  a  regular  meeting,  shall  receive  at  some  subsequent  meeting 
an  honorable  discharge,  signed  by  the  Post  Commander  and  attested  by  the 
Adjutant.  Provided,  That,  at  the  time  of  such  application,  there  are  no  pe 
cuniary  charges  against  him  on  account  of  the  Post.  A  Comrade  thus  dis 
charged  can  be  re-admitted  by  filing  a  new  application,  to  be  regularly 
referred  and  reported  on,  and  upon  receiving  a  two-thirds  vote  of  the  mem 
bers  present,  and  voting  at  a  regular  meeting,  he  shall  be  admitted  without 
re-muster,  on  taking  anew  the  obligation. 
NOTE— See  Opinion  LXIII,  herein. 


OF   THE    GRAND   ARMY    OF   THE   REPUBLIC.  13 


membership  who  has  at  any  time  borne  arms  against  the  United 
States."* 

The  fact  that  the  service  against  the  Union  was  involuntary, 
does  not  constitute  this  case  an  exception  to  a  rule  so  clearly  and 
unreservedly  expressed.  There  were  no  persons  whom  the 
framers  of  this  rule  could  have  contemplated  but  this  very  class 
who  served  in  the  Confederate  army,  and  afterwards  in  our  own  ; 
for  at  the  commencement  of  the  Rebellion,  all  who  had  then 
borne  arms  against  the  United  States  in  any  foreign  war,  must 
have  become  too  old  for  our  service,  unless  there  were  any  who 
fought  against  us  in  Mexico,  and  for  us  during  the  Rebellion.  If 
there  were  any  such  persons  their  number  must  be  too  small  to 
have  been  thought  of  when  this  regulation  was  passed.  Clearly, 
therefore,  the  applicant  in  this  case  is  ineligible. 

There  may  be  instances,  and  the  present  may  be  one  of  them, 
where  this  rule  works  harshly,  but  it  is  of  far  more  importance 
that  the  loyalty  of  every  member  of  our  Order  should  be  above 
reproach  than  that  we  should  omit  from  our  roll  a  few  good  men, 
who  showed  weakness,  at  least,  if  they  escape  the  suspicion  of 
disloyalty. 

NOTE— See  Opinion  CXIV. 


*ARTICLE  IV,  CHAPTER  I. 

ELIGIBILITY   TO    MEMBERSHIP. 

Soldiers  and  sailors  of  the  United  States  army,  navy  or  marine  corps, 
who  served  between  April  I2th,  1861,  and  April  9th,  1865,  in  the  war  for 
the  suppression  of  the  Rebellion,  and  those  having  been  honorably  dis 
charged  therefrom  after  such  service,  and  of  such  State  regiments  as  were 
called  into  active  service  and  subject  to  the  orders  of  United  States  general 
officers,  between  the  dates  mentioned,  shall  be  eligible  to  membership  in  the 
Grand  Army  of  the  Republic.  No  person  shall  be  eligible  to  membership 
who  has  at  any  time  borne  arms  against  the  United  States. 


14  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


OPINION  V.     AUGUST   14,   1878. 

1.  Power  of  Post  to  fix  amount  of  initiation. 

2.  Grades  of  membership  abolished. 

3.  No  tax  can  now  be  assessed  on  members  of  the  first  and  second  grades  now  admitted  to 

the  Order. 

The  question  is  referred  to  me,  "whether  the  former  tax 
upon  members  for  advancement  to  the  second  or  third 
grades  shall  be  still  imposed  upon  recruits  and  soldiers, 
and  upon  new  members,  and  if  so,  in  what  manner?" 

I  answer — 

1.  It  is  within  the  power  of  any  Post  to  fix  the  amount  of  the 
initiation  fee  to  be  paid  by  new  members,  provided  that  it  shall 
not  be  less  than  one  dollar   (vide  Chapter  II,  Article  II,  Sec 
tion  8,  Rules  and  Regulations.)*     This  intiation  fee  should  be 
fixed  by  the  Post  By-Laws,  and  may  be  altered  at  the  discretion 
of  the  Post,  in  the  manner  that  such  By- Laws  may  prescribe  in 
the  case  of  other  amendments. 

2.  The  amendment  to  the  Rules  and  Regulations  passed  at 
the  last  session  of  the  National  Encampment,  May,  1871,  and 
the  resolution  adopted  at  the  same  time,  published  in  General 
Orders,  C.  S..  dated  New  York,  June   14,   1871,  abolished  the 
system  of  grades  of  membership,  and  consequently  all  differences 
of  privilege  or  standing  founded  on  such  distinctions,  and  ad 
mitted  all  who  are  now  members  of  the  Order  in  good  standing 
to  full  membership,  upon   their  complying  with   the  directions 
contained  in  the  resolution. 

3.  It  is   pertinent  to   the   consideration  of  this  question  to 
remember  that  whenever  the  Posts  under  the  old  organization 
had  the  power  to  levy  taxes  or  fees,  the  power  was  derived  from 
express  provisions   in    the    Regulations.     They  were   expressly 
authorized  or  directed  to  assess  annual  taxes,  initiation  fees,  and 


*SECTION  8,  ARTICLE  II,  CHAPTER  II. 

SECTION  8.  A  member-elect  shall  pay,  before  enlistment  and  muster,  an 
admission  fee  of  not  less  than  one  dollar.  Upon  muster  in,  he  shall  sub 
scribe  to  a  copy  of  these  Regulations,  and  of  the  By-Laws  of  the  Post. 


OF    THK    GRAND    ARMY    OF    THE    REPUBLIC.  IT) 


fees  for  the  advancement  of  recruits  and  soldiers.  We  should 
have  expected,  therefore,  that  if  the  Encampment  had  intended 
that  fees  should  be  charged  the  present  soldiers  and  recruits  on 
their  reception  as  full  members,  it  would  have  been  so  provided 
in  this  carefully-drawn  and  well-considered  resolution.  But  there 
is  nothing  of  the  kind  there.  Post  Commanders  are  directed, 
immediately  on  such  applicants  presenting  themselves,  to  admin 
ister  to  them  the  new  obligation,  and  to  admit  them  to  full  mem 
bership  in  the  Post. 

Here  is  not  only  no  direction  to  assess  a  tax,  but  such  imme 
diate  action  is  evidently  contemplated  as  would  give  no  time  for 
any  tax  to  be  assessed  or  imposed  :  for  a  previous  meeting  of  the 
members  of  the  third  grade  would  be  necessary  in  order  that  the 
amount  of  such  tax  should  be  fixed  by  them. 

We  shall  search  in  vain  anywhere  else  for  authority  to  impose 
the  tax. 

I  am  therefore  of  the  opinion  that  no  tax  can  be,  or  ought  to 
be,  imposed  upon  the  members  of  the  first  and  second  grades 
who  are  now  admitted  to  full  membership  with  the  veterans.* 


OPINION  VI.     SEPTEMBER  7,  i87i. 

i.     Paymaster's  clerk  in  the  navy  is  eligible  to  membership. 

I  am  of  the  opinion  that  a  Paymaster's  clerk  in  the  navy  is  a 
sailor  of  the  United  States  navy  in  the  intent  of  Section  i,  Article 
IV,  Chapter  I  of  the  Rules  and  Regulations. f 

He  is  appointed  by  the  Paymaster,  subject  to  the  Captain's 
approval,  and  is  then  sworn  or  mustered  into  the  service  and  re 
ceives  a  warrant  which  assigns  him  definite  rank.     If  he  leaves 


*SECTION  10,  ARTICLE  It,  CHAPTER  II. 

SECTION  10.  The  applications  for  membership  of  persons  who  were 
comrades  before  the  introduction  of  the  grade  system,  but  who  never  took 
the  obligation  of  the  third  grade,  shall  be  received  and  acted  upon  the  same 
as  if  the  applicant  had  never  belonged  to  the  Grand  Army. 

NOTE— See  Opinion  CXV. 

fSee  Article  IV  at  close  of  Opinion  IV. 


16  OPINIONS    OF    JUDGE   ADVOCATES-GENERAL 


the -ship  without  permission,  he  is  a  deserter  and  is  liable  o 
punishment  as  such.  He  is  borne  on  the  ship's  roll  and  is  paid 
by  the  Government,  and  has  a  station  and  a  command  given 
him  in  time  of  action.  I  consider  him  as  eligible  to  membership 
as  an  Engineer  or  Assistant  in  the  navy,  or  as  a  Hospital  Stew 
ard  in  the  army.  When  his  cruise  is  over  he  receives  a  dis 
charge,  so  that  he  has  been  in  the  service,  subject  to  regulations, 
liable  to  command  men  in  action,  and  in  every  way  entitled  to 
be  associated  with  those  who  served  in  other  capacities  during 
the  war. 


OPINION  VII,  SEPTEMBER  12,  1871. 

1.  Commander-in-Chief  may  prepare  a  translation  of  the  Ritual. 

2.  Commander-in-Chief  may  authorize  use  of  Ritual  in  a  foreign  language. 

1.  Can  the   Commander-in-Chief   authorize   a  Post  to 
print  the  Ritual  in  German  for  its  own  use? 

2.  Can  he  authorize  a  Post  to  use  a  written  translation 
into  German? 

My  opinion  on  the  points  submitted  is  as  follows : 

1.  I  do  not  regard  the  language  in  which  it  is  written  as  a 
material  part  of  the  Ritual.     I  think  its  ceremonies  would  be  as 
well  performed  in  German  or  in  French  as  in  English ;  but  the 
preparation  of  such  a  translation  should  be  under  the  immediate 
supervision  and  direction  of  the  Commander-in-Chief.     He  might 
detail  any  competent  Comrade  to  make  the  translation,  and  could 
employ  any  Comrade  to  print  it.     The  copies  printed  should  all 
be  in  his  custody,  and  issued  from  National  Headquarters,  as  the 
Ritual  in  English  is. 

2.  Under  restrictions  as  to  the  mode  of  supplying  the  Ritual 
in  a  foreign  language  which  I  have  just  stated,  I  think  the  Com 
mander-in-Chief  may  authorize  its  use  by  a  Post  composed  of 
persons  who  speak  the  language  proposed  better  than  English.* 


*  ARTICLE  VI,  CHAPTER  IV. 

DUTIES    OF   OFFICERS. 

SECTION   i.     The  Commander-in-Chief  shall  enforce  the  Rules  and  Reg 
ulations  of  the  Grand  Army  of  the  Republic,  and  the  orders  of  the  National 


OF    THE    GRAND    ARMY    OF    THE    REPUBLIC.  17 


OPINION  VIII.     SEPTEMBER  12,   1871. 

1.  Commander-in-Chief  has  no  authority  to  withdraw  the  Charter  of  a  Department — Depart 

ment  Commanders  may,  by  consent  of  the  Council  of  Administration,  suspend  or  annul 
Charter  of  Post. 

2.  No  such  power  given  to  National  Council  of  Administration  nor  to  the  National  Encamp 

ment.     .(Changed  by  amendment.     See  Note.) 

3.  Inspectors,  and  their  duty. 

4.  Powers  of  Commander-in-Chief  as  to  Department  officers. 

5.  On  refusal  or  neglect  of  Department  officers   to  perform  their  duties  they  may  be  placed  in 

arrest. 

6.  Commander-in-Chief  may  detail  an  Acting  Commander. 

If  the  officers  of  a  Department  of  the  Grand  Army  of 
the  Republic  neglect  their  duty,  omit  to  make  returns  and 
reports  as  required  by  the  Rules  and  Regulations,  and  allow 
their  Departments  to  become  demoralized  and  practically 
defunct,  has  the  Commander-in-Chief  authority  to  annul 
the  Charter  of  the  Department  and  remand  it  to  a  provis 
ional  condition? 

Has  the  Council  of  Administration  this  authority? 

After  a  careful  consideration  of  the  subject,  I  submit  my 
opinion,  as  follows : 

i.  There  is  no  authority  given  by  the  Rules  and  Regulations 
to  the  Commander-in-Chief  to  withdraw  the  Charter  of  a  Depart 
ment.  The  subject  of  Charters  is  considered  in  Chapter  V, 


Encampment  and  Council  of  Administration,  and  for  this  ptirpose  he  may 
issue  suck  orders  as  may  be  necessary.  He  shall  preside  in  the  National 
Encampment  and  Council  of  Administration,  decide  all  questions  of  law  or 
usage,  subject  to  an  appeal  to  the  National  Encampment;  approve  all  requi 
sitions  properly  drawn  on  the  Quartermaster-General,  and  shall  hold  all 
securities  given  by  National  Officers,  as  trustee  for  the  Grand  Army  of  the 
Republic.  He  shall  appoint  immediately  after  entering  upon  his  office,  the 
Adjutant-General,  the  Quartermaster-General,  the  Inspector-General,  the 
Judge  Advocate-General,  and  Assistant  Adjutant-General,  as  many  Assistant 
Inspectors-General  on  the  nomination  of  the  Inspectors-General,  and  as 
many  Aides-de-Camp  as  he  may  deem  necessary.  He  shall  appoint  all  other 
National  Officers  and  committees  not  otherwise  provided  for,  and  may  re 
move  these  officers  at  his  pleasure.  He  shall  promulgate  through  the  proper 
officers  the  National  countersign,  and  may  change  the  same  at  his  discretion, 
and  shall  issue  to  all  Departments,  regularly  organized,  suitable  Charters, 
and  appoint  Provisional  Commanders  in  States  and  Territories  where  there 
is  no  Department  organization. 


-? 


18  OPINIONS    OF    JUDGE    ADVOCATES-GENERAL 


Article  I,  of  the  Regulations.  That  Article  contains  a  provision 
(Section  4)  that  Charters  of  Posts  may  be  suspended  or  annulled 
by  the  Department  Commander  with  the  advice  and  consent  of 
the  Council  of  Administration ;  but  there  is  no  such  power 
granted  to  the  Commander-in-Chief  and  the  National  Council  of 
Administration  with  respect  to  Departments,  though  the  mode  of 
issuing  Charters  to  Departments,  and  the  fees  to  be  paid  for 
them,  are  specified  in  the  next  Section  of  the  same  Article.  Fol 
lowing  an  almost  inflexible  rule  of  construction,  the  inference  is 
unavoidable,  that  such  power  was  not  intended  to  be  given  to 
the  Commander-in-Chief. 

It  does  not  seem  to  me  that  such  power  can  be  claimed,  either, 
as  one  of  the  necesssary  prerogatives  of  the  office  of  Commander- 
in-Chief,  like  his  right  to  issue  orders  on  various  subjects  not 
specifically  provided  for  in  the  Regulations.  It  is  a  power  of 
such  importance,  and  so  liable  to  abuse  or  error  in  its  exercise, 
that  it  should  not  be  claimed  without  express  authority  of  the 
Constitution  of  the  Order. t 

2.  The  Regulations  nowhere  confer  this  power  specifically 
upon  the  National  Council  of  Administration  any  more  than 
upon  the  Commander-in-Chief. 

Is  this  power,  then,  implied  in  the  provision,  Chapter  IV, 
Article  VI,  Section  9:  "It  (the  Council  of  Administration) 
*  *  shall  represent  in  all  matters  the  National  Encampment 
in  the  interval  between  its  sessions?" 

This  provision  does  not  relate  to  the  exceptional  powers  of 
the  National  Encampment,  like  that,  for  instance,  of  altering  or 
amending  the  Regulations,  for  the  exercise  of  that  power  is  con 
ferred  by  Chapter  V,  Article  XV,  t,o  the  National  Encampment 
at  its  annual  meeting.  It  must,  therefore,  confer  power  to  be 
exercised  under  those  Rules  and  Regulations,  not  amounting  to  an 


NOTE. — By  amendment  to  Chapter  V,  Article  I,  adding  Section  6,  National  Encampment, 
May,  1872,  the  power  of  revoking  the  Charter  of  a  Department  is  given  to  the  National  En 
campment,  or  to  the  Commander-in-Chief  and  Council  of  Administration,  viz. : 

''SECTION  6.  The  National  Encampment,  at  its  annual  session,  or  the 
Commander-in-Chief,  with  the  consent  of  the  Council  of  Administration,  may 
at  any  time  revoke  the  Charter  of  a  Department,  which  for  three-quarters  of 
a  year  has  failed  to  forward  its  reports  or  dues,  and  may  remand  such  a  De 
partment  to  a  provisional  condition." 


OF    THE   GRAND    ARMY    OF    THE    REPUBLIC.  19 


amendment  of  them,  and  can  only  include  the  general  and  ordi 
nary  matters  of  administration  which  are  by  the  Regulations 
entrusted  to  the  National  Encampment. 

But  can  the  National  Encampment  itself  annul  the  Charter  of 
a  Department,  for  certainly  it  has  not  conferred  on  the  Council 
of  Administration  greater  powers  than  its  own? 

Such  an  act  would  be  in  the  nature  of  a  forfeiture  or  punish- 
ishment,  and  could  only  be  performed  by  the  passage  of  a  reso 
lution  declaring  that  the  Charter  had  been  misused,  and  had, 
therefore  become  forfeited.  Such  a  resolution,  however,  would 
be  an  ex  post  facto  law,  which  is  now  universally  reprobated.  It 
would  be  affixing  a  punishment  not  prescribed  by  the  law  under 
which  the  offense  was  committed.  The  only  course  for  the 
National  Encampment  in  the  premises  would  be  to  pass  an 
amendment  to  the  Rules  and  Regulations  providing  a  remedy 
for  such  a  condition  of  affairs  in  the  future,  by  giving  the  Com- 
raander-in-Chief  and  the  Council  of  Administration,  or  the  Na 
tional  Encampment  itself,  power  to  act  if  the  neglect  of  all  the 
Department  officers  should  be  repeated  or  continue  after  the 
passage  of  such  a  law. 

Again,  the  revocation  of  the  Charter  of  a  Department  would 
remove  all  the  Department  officers ;  but,  as  the  Regulations  now 
stand,  this  is  impossible  without  a  Court  Martial. 

So  much  for  the  extreme  power  to  annul  a  Department  Char 
ter  which  does  not  seem  to  me  to  be  lodged  in  any  officer  or 
body  of  the  Grand  Army.  The  representation  of  such  a  Depart 
ment  in  the  National  Encampment  is  suspended,  by  existing 
regulations,  while  the  disability  exists. 

3.  The  policy  of  the  National  Encampment,  as  expressed  in 
the  Rules  and  Regulations,  seems  to  have  been  to  prevent  any 
Department  getting  into  a  demoralized  condition  by  the  system 
of  inspection  by  officers  appointed  by  the  Commander-in-Chief, 
and  responsible,  through  the  Inspector-General,  to  him  alone. 
By  this  means,  any  delinquency  on  the  part  of  Department  offi 
cers  would  be  immediately  reported,  and,  if  occasioned  by 
mistake,  would  be  corrected ;  or,  if  arising  from  intentional 
insubordination  or  carelessness,  would  be  the  occasion  for  trial 
by  Court  Martial.  One  such  exercise  of  discipline  would,  in 


20  OPINIONS    OF    JUDGE   ADVOCATES-GENERAL 


most  cases,  be  sufficient  to  recall  the  Department  to  its  duty. 
The  advantage  of  having  at  Headquarters  of  each  Department  a 
representative  of  the  Commander-in-Chief  in  the  person  of  an 
Assistant  Inspector-General,  are  obvious,  from  the  fact  that  a 
personal  interview  with  the  Department  Commander  is  a  mode 
of  communication  much  more  easy  and  effective  than  by  letter 
or  order. 

4.  In  regard  to  the  present  power  of  the  Commander-in-Chief, 
it  is  clear  that  if  the  Commander  of  any  Department  refuses  or 
neglects  to  forward  his  returns,  or  to  obey  lawful  orders,  he  may 
be  placed  in  arrest,  /.  e. ,  suspended  from  his  office,  on  charges 
being  preferred  against  him.  Then  his  duties  devolve  on  the 
Senior  Vice  Commander,  and  after  a  reasonable  time,  if  his  con 
duct  is  the  same,  he  may  be  treated  in  the  same  way.  The  Jun 
ior  Vice  Commander  then  succeeds,  and  if  he  also  proves  negli 
gent  or  disobedient,  he  must  likewise  be  suspended.  Then  it 
would,  I  think,  be  the  duty  of  the  Commander-in-Chief  to  detail 
a  Comrade  as  Acting  Commander  of  the  Department,  with  in 
structions  to  call  immediately  a  meeting  of  the  Department  Coun 
cil  of  Administration  for  the  election  of  Department  officers  for 
the  remainder  of  the  current  year.  Until  the  holding  of  such 
an  election  the  Acting  Commander  would  hold  the  office. 

If  all  the  Department  officers  were  removed  or  resigned,  the 
Acting  Commander  could  be  appointed  at  once  ;  but  no  act  could 
be  done  affecting  the  Charter  of  the  Department,  and  a  regular 
election  of  Department  officers  must  be  held  as  soon  as  possible. 
All  the  remedies  now  given  by  the  Regulations  are  personal,  by 
the  prosecution  and  removal,  after  trial,  of  the  officers  who  neg 
lect  their  duty. 

The  only  justification  of  the  act  of  the  Commander-in-Chief  in 
appointing  an  Acting  Department  Commander  would  be  the  ne 
cessity  of  filling  the  office  until  an  election  could  be  held. 

Finally:  I  can  not  avoid  these  conclusions,  although  in  one 
instance  it  seems  as  if  the  late  Commander-in-Chief,  Comrade  J. 
A.  Logan,  did  exercise  some  such  power  as  the  one  \ve  are  con 
sidering,  in  respect  to  the  Departments  of  Missouri  and  Iowa,  as 
appears  by  General  Order  No.  3,  Paragraph  6,  Headquarters 
Grand  Army  of  the  Republic,  Washington,  February  5.  1871  ;  but 


OF    THE    GRAND    ARMY   OF    THE    REPUBLIC.  21 


it  does  not  appear  whether  these  were  provisional  or  regularly 
constituted  Departments,  nor  does  it  appear  that  the  Charter  of 
either  Department  was  revoked.  Paragraph  7,  of  the  same  order, 
simply  carries  out  the  Rule  which  suspends  Departments  from 
representation  while  their  reports  or  dues  are  in  arrears. 

If  it  was  the  fact  that  the  Departments  which  were  virtually 
ignored  by  the  order  to  the  Posts  to  report  directly  to  National 
Headquarters,  had  been  regularly  constituted,  and  were  by  this 
order  remanded  to  a  provisional  condition,  while  still  holding  the 
same  opinion  as  to  the  illegality  of  the  act,  I  should  be  compelled 
to  say  that  the  question  has  been  decided  by  the  precedent  thus 
made  for  the  present  and  future  cases.  Yet  I  regard  such  a  pre 
cedent  as  a  most  dangerous  one,  and  should  not  advise  that  it  be 
followed. 

If  the  question  is  a  new  one,  the  course  of  argument  I  have 
pursued  seems  to  me  conclusive ;  but  the  Commander-in-Chief 
is  made  the  final  arbiter  of  all  questions  of  law  and  usage,  and 
if  he  thinks  the  necessity  of  the  case  demands  extraordinary 
powers,  he  may  exercise  them,  subject  to  appeal  to  the  National 
Encampment. 


OPINION  IX.     SEPTEMBER  15,  1871. 

1.  Department  Officers  hold  their  offices  until  their  successors  are  installed. 

2.  Commander-in-Chief  may  take  jurisdiction  of  a  Department. 

If  a  Department  organization  neglects  to  hold  annual 
Encampments  for  electing  officers,  can  they  hold  their 
offices  indefinitely? 

Can  the  Commander-in-Chief  order  the  Department  Com 
mander  to  call  an  Encampment,  and  name  time  and  place, 
when  the  Department  Commander  has  failed  to  do  so? 

I  say,  decidedly,  yes  to  both  questions — to  the  first  because 
the  Regulations  prescribe  that  the  officers  shall  hold  their  posi 
tions  until  their  successors  are  installed  ;  to  the  second,  because 


22  OPINIONS    OF  JUDGE   ADVOCATES-GENERAL 


it  is  the   duty  of  the   Commander-in-Chief  to   issue   all   orders 
required  to  enforce  the  Rules  and  Regulations.* 

2.  If  a  Department  Commander  fails  to  perform  a  duty  pre^ 
scribed  by  the  Regulations,  the  Commander-in-Chief  should 
order  him  to  do  it ;  and  when  the  matter  of  calling  a  meeting  is 
in  his  hands,  by  virtue  of  the  neglect  of  the  Department  Com 
mander,  he  may  take  jurisdiction  of  the  whole  matter,  and  may 
fix  the  time  and  place  in  his  order  to  the  Department  Com- 
mander.f 


OPINION  X.     SEPTEMBER  15,  1871. 

i.     Commander-in-Chief  has  no  power  to  change  a  Permanent  Department  to  a  Provisional 
Department. 

(See  note  to  Opinion  VIII.) 

The  Commander-in-Chief  having  power  to  order  the  per 
manent  organization  of  a  Department  when  it  comprises  ten 
Posts,  can  he  not  place  it  again  in  a  provisional  condition 
when  the  number  of  Posts  becomes  less  than  ten? 

I  answer,  no.  It  must  be  expected  that  our  organization, 
composed  of  men  past  their  early  youth,  will  gradually  diminish 
in  numbers  until  it  is  finally  extinguished  by  the  death  of  all  who 
have  joined  it.  This  cause,  it  is  evident,  will  reduce  one  Depart 
ment  after  another  to  a  less  number  of  Posts  than  ten,  and  yet  it 
would  be  desirable,  I  think,  that  the  few  survivors  of  our  glorious 
army  should  keep  up  the  regular  organization  to  the  last.  At 
any  rate,  the  emergency  is  one  which,  sooner  or  later,  will  arrive 
in  every  Department,  and  the  subject  of  providing  for  it  may  be 


*SECTION  2,  ARTICLE  V,  CHAPTER  III. 

SECTION  2.  The  officers  thus  elected  shall  enter  upon  their  respective 
duties  immediately  after  the  adjournment  of  the  meeting  at  which  they  were 
chosen,  and  shall  hold  office  until  their  successors  are  duly  installed. 

fSee  Section  I,  Article  VI,  Chapter  IV,  first  paragraph  of  the  section  fol 
lowing  Opinion  VII. 


OF   THE   GRAND    ARMY    OF   THE    REPUBLIC.  23 


left  for  the  future.  Any  decision  of  the  question  now,  in  view  of 
the  fact  that  it  must  come  before  the  National  Encampment 
by-and-by,  would  be  premature.  And  certainly  any  decision 
with  reference  to  one  Department,  without  considering  how  it 
will  apply  in  the  future  to  all,  would  be  injudicious. 

I  think  also  that  the  course  of  argument  I  pursued  in  Opinion 
VIII  is  not  avoided  by  the  different  manner  of  putting  the  ques 
tion.  If  the  Commander-in-Chief  can  not  revoke  a  Department 
Charter,  as  I  there  argued,  under  any  circumstances,  it  will  be 
useless  to  consider  whether  any  particular  Department  Charter 
ought  to  be  revoked. 

NOTE. — This  opinion  is  not  affected  by  the  amendment  referred  to  in  the  note  to  Opinion  VIII. 


OPINION  XI.     SEPTEMBER  29,   1871. 

i.     One  not  legally  introduced  into  the  Order,  not  a  member. 

a.     Council  of  Administration  has  no  power  to  legalize  an  illegal  act  of  a  Post  Commander. 

Post  No.  7,  Department  of  New  Hampshire,  voted  upon 
an  application  for  admission  at  the  same  meeting  at  which 
it  was  received.  The  applicant  was  declared  elected,  and 
was  thereupon  mustered  into  the  Post  Some  of  the  mem 
bers  of  the  Post  appealed  from  its  action  to  the  decision  of 
the  Department  Commander.  Comrade  Frank  D.  Wood- 
bury,  Judge  Advocate,  Department  of  New  Hampshire, 
decided  that  the  action  of  the  Post  was  illegal  and  void.* 

*  ARTICLE  II,  CHAPTER  II. 

ADMISSION    TO    MEMBERSHIP. 

SECTION  I.  Every  application  for  admission  to  membership  shall  be  in 
writing,  and  shall  give  in  detail,  upon  the  blanks  furnished  by  the  National 
Headquarters,  the  applicant's  age,  birthplace,  residence,  occupation,  date  and 
rank  when  entering  the  service,- and  his  rank  at  the  time  of  his  discharge  (or 
if  still  in  the  service,  his  present  rank),  the  date  and  cause  of  his  discharge, 
the  company  and  regiment  or  ship  to  which  he  belongs  or  belonged,  the 
length  of  time  he  served;  if  wounded,  when,  in  what  engagement,  in  what 


24  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 

The  Department  Council  of  Administration  decided,  nev 
ertheless,  that  the  applicant  should  be  retained  as  a 
Comrade. 

From  this  decision  the  appellants  appeal  to  the  Com- 
mander-in-Chief. 

i.  I  am  of  opinion  that  the  appeal  should  be  sustained  and 
the  decision  of  the  Council  of  Administration  reversed.  The 
opinion  of  Comrade  Woodbury  is  correct,  and  his  conclusion  is 
not  disputed,  but  the  election  and  muster  were  illegal. 

If  a  man  was  not  legally  introduced  into  the  Order,  he  is  not 
a  member.  All  the  proceedings  in  his  case,  subsequent  to  .the 
reference  to  the  committee,  are  null  and  void.  The  Post  Com 
mander  should  be  directed  to  cause  the  committee  to  make  a 


manner  and  degree,  and  the  fact  of  any  previous  application,  and  to  what 
Post  it  was  made. 

SEC.  2.  The  application  shall  be  presented  at  a  stated  meeting,  and  be 
recommended  by  a  member  of  the  Post,  who  shall  vouch  for  the  applicant's 
eligibility ;  it  shall  then  be  referred  to  a  committee  of  three,  of  which  num 
ber  the  member  recommended  shall  not  be  one,  for  investigation  and  report. 

SEC.  3.  The  committee  shall  make  careful  investigation  of  the  facts  set 
forth  in  the  application ;  they  shall  see  the  applicant  in  person,  and  shall 
recommend  his  election  or  rejection,  at  a  meeting  subsequent  to  their  ap 
pointment,  by  endorsement  upon  the  application.  Provided,  however, .That 
the  Commander-in-Chief  or  a  Department  Commander  may  grant  a  dis 
pensation,  in  writing,  to  a  Post  to  waive,  in  any  particular  case,  the  rule 
prohibiting  an  investigation  committee  from  reporting  upon  an  application 
on  the  evening  of  their  appointment. 

SEC.  4.  After  the  reading  of  the  report,  the  Commander  shall  give  op 
portunity  to  any  Comrade  having  objections  to  the  election  of  the  applicant 
to  state  the  same,  after  which  a  ballot  with  ball  ballots  shall  be  had.  If,  on 
a  count  of  the  balls  deposited,  it  appear  that  not  more  than  twenty  are  cast, 
and  two  or  more  of  them  are  black,  the  candidate  shall  be  declared  rejected; 
but,  if  more  than  twenty  are  cas,t,  then  an  additional  black  ball  for  every 
additional  twenty  shall  be  necessary  to  reject.  If  a  less  number  of  black 
balls  than  above  provided  be  cast,  the  candidate  shall  be  declared  elected, 
and  no  reconsideration  of  a  ballot  shall  be  had  after  the  Commander  has 
announced  the  result  thereof.  But  should  the  result  of  the  ballot  be  unfa 
vorable,  and  the  Commander  suspect  any  mistake,  he  may,  at  his  discretion, 
before  declaring  the  vote,  order  a  second  ballot,  the  result  of  which  shall  be 
fina  . 

NOTE     See,  also,  Opinion  XXXVII. 


OF   THE   GRAND    ARMY   OF   THE    REPUBLIC.  25 


new  report.  A  new  election  should  be  held,  and  then,  if  the 
applicant  is  elected  he  should  be  re-mustered.  The  reason  of 
the  rule  requiring  the  interval  between  two  meetings  to  elapse 
between  an  application  and  the  vote  on  the  question  of  admis 
sion,  is  to  give  notice  to  the  members  of  the  Post,  that  the  facts 
may  be  ascertained  which  would  prevent  the  election  of  im 
proper  persons.  If  the  applicant  in  this  case  is  a  suitable  person 
for  election  he  will  no  doubt  be  elected  again ;  if  not,  he  should 
not  be  a  member  of  the  Order. 

2.  It  will  be  readily  seen,  I  think,  that  the  condonation  by 
the  Council  of  Administration  of  the  illegal  act  of  the  Post 
Commander,  in  putting  the  question  of  the  applicant's  admission 
at  the  same  meeting  at  which  the  application  was  received,  and 
the  adoption  of  the  result  of  that  act  by  considering  the  person 
a  member,  is  arrogating  to  the  Council  the  same  power  to  avoid 
the  Rules  and  Regulations  which  the  Post  Commander  assumed.* 

The  Post  By-Laws  should  also  be  modified,  so  as  not  to  con 
flict  with  the  Rules  and  Regulations. 


OPINION  XII.     OCTOBER  i,   1871. 

i.     National  Council  of  Administration — Rights  of— Are  National  Officers  of  the  Grand  Army 

of  the  Republic. 
•2.     Appeals  from  Department  Commander. 

The  questions  proposed  appear  sufficiently  in  the  opinion. 

i.  I  think  that  all  the  members  of  the  National  Council  of 
Administration  may  sit,  whether  the  Departments  they  come  from 
are  in  arrears  or  not. 


*SECTION    9,  ARTICLE    VI,  CHAPTER    III,    RULES    AND    REG 
ULATIONS. 

DUTIES    OF   THE    DEPARTMENT    COUNCIL    OF   ADMINISTRATION. 

SECTION  9.  The  Council  of  Administration  shall  have  charge  of  the 
working  interests  of  the  Department,  shall  audit  the  accounts  of  the  various 
officers,  shall  keep  a  full  and  detailed  record  of  its  proceedings,  and  shall 
present  the  same  for  the  consideration  of  the  Department  Encampment  at 
each  stated  meeting  thereof. 


26  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


First — Because  the  clause  of  exclusion,  in  terms,  only  applies 
to  representation  in  the  National  Encampment,  and  penal  statutes 
are  always  to  be  construed  strictly.* 

Second — Because  the  Council  of  Administration  are  National 
Officers  of  the  Grand  Army  of  the  Republic,  elected  by  the  Na 
tional  Encampment,  not  by  Departments,  and  are  not  representa 
tives  of  Departments,  except  in  the  most  general  sense.  I  think  the 
members  of  the  Council  should  be  more  dependent,  for  their  right 
to  sit  there,  on  the  status  of  their  Departments,  than  the  Com- 
mander-in-Chief  would  be,  or  any  other  of  the  National  Officers,  j 

2.  Chapter  IV,  Article  VI,  Section  i,  says:  "He  (the  Com- 
mander-in-Chief)  shall  decide  all  questions  of  law  and  usage, 
subject  to  an  appeal  to  the  National  Encampment."  I  do  not 
understand  that  an  appeal  lies  from  a  decision  of  a  Department 
Commander  or  Department  Encampment,  directly  to  the  National 
Encampment,  but  first  to  the  Commander-in-Chief,  then,  after 
his  ruling,  to  the  National  Encampment,  j 


'SECTION   4,  ARTICLE    II,  CHAPTER    IV,  RULES    AND 
REGULATIONS. 

REPRESENTATION. 

SECTION  4.  Departments  and  Provisional  Departments  in  arrears  for 
reports  or  dues  shall  be  excluded  from  all  representation  in  the  National 
Encampment  until  the  same  are  forwarded. 

fSECTION  2,  ARTICLE  IV,  CHAPTER  IV. 

OFFICERS. 

SECTION  2.  The  National  Officers  of  the  Grand  Army  of  the  Republic 
shall  be  a  Commander-in-Chief,  a  Senior  Vice  Commander-in-Chief,  a  Junior 
Vice  Commander-in-Chief,  an  Adjutant-General,  a  Quartermaster-General, 
an  Inspector-General,  a  Judge  Advocate-General,  a  Surgeon-General,  a 
Chaplain-in-Chief,  and  a  Council  of  Administration,  consisting  of  the  above- 
named  officers  and  one  Comrade  from  each  Department,  to  be  chosen  by  the 
National  Encampment. 

JARTICLE  VII,  CHAPTER  III. 

APPEALS. 

All  members  shall  have  the  right  of  appeal,  through  the  proper  channels, 
from  acts  of  Posts  or  Post  Commanders,  and  Department  Commanders 
or  Encampments  to  the  next  highest  authority,  and  to  the  Commander-in- 
Chief,  whose  decisions  shall  be  final,  unless  reversed  by  the  National 
Encampment;  but  all  decisions  appealed  from  shall  have  full  force  and  effect 
until  reversed  by  competent  authority. 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC.  27 


OPINION  XIII.     OCTOBER  12,  1871. 

1.  Private  members  of  a  Post  are  not  to  be  held  responsible  for  the  neglectof  the  officers. 

2.  Department  officer  does  not  forfeit  his  office  by  reason  of  any  misconduct  of  his  Post. 

Does  a  Comrade  holding  a  Department  office  forfeit 
such  office  when  the  Post  of  which  he  is  a  member  neg 
lects  its  duty,  and  becomes  practically  disorganized? 

1.  If  Posts  are  unmindful  of  their  duties  their  Charters  should 
be  suspended  or  annulled  by  the  Department  Commander  and 
Council  of  Administration,  but  it  is  altogether  too  harsh  a  doc 
trine  to  hold  the  private  members  of  the  Post  responsible  for  the 
neglect  of  its  officers.*     The  remedy  is  either  against  the  whole 
body,  as  above,  or  by  Court  Martial  of  the  officers,  the  respon 
sible    parties.      The   status    of    the    members    of   such   Posts    is 
recognized  in  Section  4,  of  Article  IV,  Chapter  II,  Rules  and 
Regulations,  which  provides  that  if  the  members  themselves  are 
in  good  standing,  even  when  the  Post  is  disbanded,  they  may 
take  transfer  cards  and  join  other  Posts,  f 

2.  I  think,  therefore,  that  while  it  would  not  be  advisable  to 
appoint  to  any  office  a  member  of  such  a  Post,  yet,  after  the 
Comrade  is  appointed,  he  is  not  rendered  ineligible  to  retain  his 
office  by  his  Post  lapsing  into  an  undisciplined  condition.  J     If 
it  should  be   necessary  to  revoke  the  charter  of  the  Post,  the 
Comrade  holding  office  should  be  required  to  connect  himself 
with  another  at  once. 

*See  Section  6,  Article  I,  Chapter  V,  at  close  of  Opinion  VII. 

fSECTION  4,  ARTICLE  IV,  CHAPTER  II. 

SECTION  4.  Members  of  disbanded  Posts,  who  were  in  good  standing 
at  the  time  of  such  dissolution,  shall  receive  from  the  Assistant  Adjutant- 
General  of  the  Department  transfer  cards,  which  shall  have  full  force. 

JSee  Opinion  XII. 


28  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


OPINION  XIV.     OCTOBER  19,  1871. 

1.  Inspectors — Provisional  Department  Commander  can  not  appoint  Department  Inspectors. 

2.  Inspector-General  may  nominate  Assistants. 

Can   a   Provisional    Department   Commander  appoint  a 
Department  Inspector? 

1.  I  think  that  Article  X,  of  Chapter  V,  Rules  and  Regula 
tions,  limits  the  staff  of  a  Provisional  Commander  to  the  officers 
there  named.*     It  seems  to  be  contemplated  that  the  duties  of 
inspection   should   be   performed    by  the  Aides,  foui  of    whom 
would  be  able  to  attend  to  any  number  of  Posts  less  than  ten. 

2.  The  Inspector-General  may  nominate  as  many  Assistants 
as  he  thinks  necessary ;  one  for  each  provisional  Department,  as 
well  as  for  regularly  constituted  Departments,  if  he  chooses.  | 


OPINION  XV.     NOVEMBER  6,   1871. 

1.  Ballot — A  personal  matter — Should  not  be  used  in  malice. 

2.  Opportunity  for  stating  objections  to  a  candidate  should  be  given. 

Has   a  comrade    the  right  to  black-ball  a  worthy  dis 
charged  soldier  on  purely  personal  grounds? 

i.     The  mode  of   election  by  ballot  gives  to  every  Comrade 
voting  an  unquestionable  right  and  opportunity  to  express  his 


*See  Article  X,  Chapter  V,  with  Opinion  XXVII. 

t  SECTION  3,  ARTICLE  V,  CHAPTER  V. 

SECTION  3.  Assistant  Inspectors-General  shall  be  appointed  by  the  Com- 
mander-in-Chief,  on  the  nomination  of  the  Inspector-General.  They  shall 
make  inspections  of  the  various  staff  officers  of  the  Departments  whenever 
required,  and  shall  report  the  result  of  the  same  immediately  to  the  Inspector- 
General,  and  shall  perform  such  other  duties  as  may  be  required  of  them  by 
the  Commander-in-Chief  or  Inspector-General. 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.     29 


opinion.  The  ballot  should  be  conducted  so  that  no  Comrade's 
vote  should  be  known,  and  he  can  not,  from  the  nature  of  the 
case,  be  called  in  question  for  exercising  his  choice.  No  Com 
rade  ought  to  be  influenced  by  personal  dislike  or  malice,  but 
should  decide  in  every  case  upon  his  honest  convictions.  Yet, 
if  he  does  not,  he  can  not  be  restrained  of  his  privilege.  He 
must  answer  to  his  own  conscience. 

2.  The  Regulations  prescribe  that  before  the  vote  is  taken  an 
opportunity  shall  be  given  to  any  Comrade  to  state  his  objections 
to  the  candidate ;  and  if  this  is  complied  with  the  friends  of  the 
candidate  will  ordinarily  withdraw  his  application  if  it  becomes 
probable  that  he  will  not  be  elected  ;  or,  if  invalid  objections  are 
presented,  after  friendly  discussion  they  may  be  removed.* 


OPINION  XVI.     NOVEMBER  26,  1871. 

1.  Post  may  exclude  suspended  members  from  the  Post. 

2.  Insignia  of  rank — Badge. 

3.  Opening  ceremonies — Head-coverings. 

1 .  Has  a  Post  the  power  to  exclude  suspended  mem 
bers  from  its  meetings? 

2.  May  members  of  the  Grand  Army  on  parades  appear 
with  the  insignia  of  rank  worn  in  the  service? 

3.  Does   the    Ritual    contemplate  that  Comrades  shall 
remain  covered  during  the  ceremonies? 

1.  The  general  Regulations  prescribe  that  a  suspended  mem 
ber  is  not  eligible  to  office,  and  has  no  vote.     Any  regulation 
adopted  by  a  Post  on  the  subject,  not  inconsistent  therewith, 
will  be  valid.      Such  By-Law  may  provide  that  suspended  Com 
rades  be  debarred  the  privilege  of  attending  the  meetings  of  the 
Post. 

2.  By   reference   to   the   published    proceedings  of  the  fifth 
annual  meeting  of  the  National  Encampment,  page   36,  it  will 

*See   Section  4,  Article   II,  Chapter  II,   after  Opinion   XI.     See,  also, 
Opinions  LXXXIX  and  CXXXVIII. 


30  OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


appear  that  the  clause  in  Chapter  V,  Article  IX,  Section  i,  allow 
ing  the  use  of  the  uniform  worn  in  the  service  was  not  stricken 
out,  but  that  such  uniform  is  still  one  of  the  optional  uniforms  of 
the  Grand  Army.  If  it  is  worn,  the  accustomed  insignia  of  rank 
will  be  retained.  If  civilians'  clothes  or  the  blouse  are  chosen, 
no  insignia  of  rank  having  yet  been  adopted  by  the  National 
Encampment,  there  is  no  badge  of  Grand  Army  rank  suitable  to 
be  worn  with  them. 

3.  There  is  no  regulation  which  answers  this  question  pre 
cisely.  My  own  construction  of  the  language  of  the  Ritual  is 
that  it  does  contemplate  the  use  of  forage  caps  in  the  opening 
ceremonies.  Whether  Comrades  who  have  only  their  ordinary 
caps  or  hats  should  remain  covered  or  not,  is  rather  a  question  of 
taste  or  propriety  than  law.  If  the  object  of  wearing  the  forage 
cap  is  to  give  uniformity  to  the  line,  and  as  much  of  a  military 
appearance  as  possible,  I  think  that  object  would  be  nearer 
attained  by  not  wearing  different  styles  of  head-coverings  when 
the  forage  cap  is  not  supplied.  But  I  should  defer  entirely  to 
the  judgment  of  the  Inspector-General  upon  this  point.* 

*NoTE. — The  question  of  uniform  and  badges  is  now  definitely  settled  by  the  National 
Encampment,  in  Rules  and  Regulations,  to-wit: 

ARTICLE  IX,  CHAPTER  V. 

UNIFORM — BADGES. 

SECTION  I.  Departments  may  adopt  a  uniform  for  their  own  members. 
Where  no  uniform  is  prescribed  by  a  Department,  each  Post  may  adopt  one. 

SEC.  2.  The  membership  badge  of  the  Grand  Army  of  the  Republic 
shall  be  in  form  and  material  that  adopted  at  the  special  meeting  of  the 
National  Encampment  in  New  York,  October  27,  1869,  and  no  other  shall 
be  worn  as  the  badge  of  the  Grand  Army  except  that  prescribed  for  officers 
in  Section  3,  and  for  past  officers  in  Section  4. 

SEC.  3.  The  badge  designating  official  position  in  the  Grand  Army  of 
the  Republic,  adopted  at  the  meeting  of  the  National  Encampment,  held  in 
New  Haven,  May  14  and  15,  1873,  may  be  worn  by  all  National,  Depart 
ment  and  Post  officers  in  the  Grand  Army  of  the  Republic,  when  on  duty  or 
on  occasion  of  ceremony,  and  no  shoulder-straps  or  other  badge  shall  be 
worn  to  designate  official  position  in  the  Grand  Army  of  the  Republic. 

SEC.  4.  Past  officers  may  wear  the  strap  of  the  official  badge  proper  for 
the  highest  position  they  have  held  in  the  Grand  Army,  with  a  clasp  upon 
the  ribbon  proper  for  such  position,  beneath  the  bronze  eagle  of  the  mem 
bership  badge,  to  which  the  whole  shall  be  pendant. 


OF   THE    GRAND    ARMY   OF   THE    REPUBLIC.  31 


OPINION  XVII.     DECEMBER  5,  1871. 

i     Scouts  in  the  Union  army  not  necessarily  eligible  to  membership. 

Is  a  person  who  has  served  as  a  scout  in  the  Union  army 
during  the  entire  war  of  the  Rebellion,  eligible  for  admis 
sion  into  the  Grand  Army  of  the  Republic? 

i.  I  do  not  understand  that  scouts  were  generally  attached 
to  the  army  for  definite  terms  of  enlistment,  or  that  they  were 
actually  mustered  into  and  out  of  service  in  such  a  way  as  to 
make  them  strictly  a  part  of  the  army.  Civilians  were  usually 
employed  for  special  services,  and  then  paid  and  discharged. 
Sometimes  enlisted  men  were  detailed,  or  volunteered  for  such 
work.  In  the  latter  case,  of  course,  no  question  could  arise  as 
to  their  eligibility  to  membership.  But  in  case  of  civilians  who 
were  employed  temporarily  as  scouts,  or  who  were  hired  as  de 
fectives  at  home,  I  can  not  see  that  our  Regulations  admit  them. 

The  matter  is,  perhaps,  of  sufficient  importance  to  be  laid  be 
fore  the  National  Encampment  for  their  construction  of  the  law. 
Until  they  take  action,  I  would  advise  that  such  applications  be 
not  received. 


OPINION  XVIII.     DECEMBER  29,  1871. 

i.     Department  Delegates — Terms  of— Rights  of— Certificates  of. 

The  question  appears  sufficiently  from  the  Opinion. 

i.     I  am  of  opinion  that  the  expression  "  the  year  following," 
in  the   Regulations,  Chapter  III,  Article  II,  Section  3,*  taken 


*  ARTICLE  II,  CHAPTER  III. 

The  Department  Encampment  shall  consist  of : 

First — The  Department  Commander,   all  Past  Department  Commanders 
who  have  served  for  a  full  term  of  one  year,  or  who,  having  been  elected  to 


32  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


in  connection  with  the  rule  that  the  election  of  delegates 
shall  take  place  at  the  last  Post  meeting  "in  each  year,"  and 
the  Regulations,  Chapter  II,  Article  VII,  Section  i,*  that  the 
Post  election  shall  take  place  "  at  the  last  stated  meeting  in  De 
cember,"  refers  to  the  calendar  year,  beginning  on  the  first  day 
of  January,  and,  consequently,  that  the  term  of  office  of  dele 
gates  to  the  Department  is  from  January  i  to  January  i. 

Members-elect  of    Department  Encampments,   therefore,   are 
entitled   to  all  the  privileges  and  liable  to  all  the  duties  of  that 


fill  a  vacancy,  shall  have  served  to  the  end  of  the  term,  so  long  as  they  re 
main  in  good  standing  in  their  respective  Posts,  and  the  other  officers  men 
tioned  in  Article  IV,  Section  2  of  this  Chapter,  and  all  Past  Post  Command 
ers,  so  long  as  they  remain  in  good  standing  in  their  respective  Posts,  in 
such  Departments  as  have  so  decided  by  a  two-thirds  vote  at  an  annual 
meeting. 

Second — All  the  Post  Commanders,  for  the  time  being,  throughout  its 
jurisdiction  (in  the  absence  of  the  Post  Commander  the  Senior  or  Junior 
Vice-Commander  may  represent  the  Post)  ;  and 

Third — Members  selected  by  ballot  by  the  several  Posts  in  such  ratio  as 
may  be  determined  "by  a  two-third  vote  of  the  members  present  and  voting^ 
at  any  previous  annual  Encampment;  but  each  Post,  whatever  its  number, 
shall  be  entitled  to  choose  at  least  one  member.  These  elected  members, 
and  an  equal  number  of  alternates,  shall  be  chosen  at  the  time  and  in  the 
mode  of  electing  officers  of  Posts,  at  the  first  stated  meeting  in  December, 
and  shall  serve  during  the  year,  commencing  on  the  first  day  of  January 
following.  Any  vacancies  that  may  occur  shall  be  filled  in  the  same  manner 
as  provided  in  Chapter  II,  Article  VII,  Section  3. 

They  shall  be  furnished  with  credentials  signed  by  the  Post  Commander 
and  Post  Adjutant,  a  copy  of  which  shall  be  forwarded  immediately  after 
the  election  to  the  Assistant  Adjutant-General  of  the  Department.  But  all 
Posts  in  arrears  for  reports  or  dues  shall  be  excluded,  for  the  time  being, 
from  representation,  either  by  Post  Commander  or  otherwise,  in  the  Depart 
ment  Encampment. 

Fourth — The  number  of  representatives  to  which  each  Post  is  entitled 
shall  be  determined  by  the  quarterly  report  last  preceding  the  election. 

*ARTICLE  VII,   CHAPTER  II. 

ELECTION    OF    OFFICERS. 

SECTION  I.  The  Post  officers  (the  Adjutant,  Sergeant-Major  and  Quar 
termaster-Sergeant  excepted),  shall  be  elected  at  the  first  stated  meeting  in 
December,  by  ballot,  unless  a  ballot  be  dispensed  with  by  unanimous  con 
sent.  They  shall  be  installed  into  their  respective  offices  at  the  first  stated 
meeting  in  January  following. 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC. 


office  on  the  first  day  of  January  next  after  their  election  in  De 
cember.  The  provision  that  a  copy  of  their  credentials  shall  be 
forwarded,  immediately  after  their  election,  to  the  Assistant 
Adjutant-General,  is  designed  to  afford  him  the  means  of  making 
up  the  roll  of  the  Department  Encampment  previous  to  the  an 
nual  meeting,  and  to  facilitate  the  organization  of  the  Depart 
ment  Encampment  when  it  meets. 


OPINION  XIX.      JANUARY  2,  1872. 

i.     Assistant  Adjutant-General  to  grant  transfer  cards — When. 
•2.     Disbanded  Posts,  Members  of— Transfer  cards  for. 

When  a  Post  has  voted  to  disband,  and  has  surrendered 
its  Charter,  do  its  officers  still  retain  the  authority  to  grant 
transfer  cards  to  members  wishing  to  join  other  Posts? 

• 

The  question  is  decided  by  Chapter  II,  Article  IV,  Section  4, 

of  the  Rules  and  Regulations.*  When  a  Post  has  voted  to  dis 
band  and  surrender  its  Charter,  all  the  papers  and  property  of  the 
Post  are  to  be  turned  over  to  Department  Headquarters.  If 
any  of  the  members  desire  to  join  other  Posts,  the  records  of  the 
Post,  in  the  hands  of  the  Assistant  Adjutant-General,  will  show 
the  standing  of  such  members,  and  he  will  grant  transfer  papers 
to  such  as  were  in  good  standing,  and  who  desire  "it. 


OPINION  XX.     JANUARY   u,  1872. 

Representatives — National  Encampment — Department  representation. 

If  a  Department  has  over  500  members  and  less  than 
1,000,  how  many  representatives  in  the  National  Encamp 
ment  is  it  entitled  to? 


*See  Section  4,  Article  IV,  Chapter  II,  with  Opinion  XIII. 

3 


34  OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


The  meaning  of  Chapter  IV,  Article  II,  Section  i,  Paragraph 
4,  is,  in  my  opinion,  that  1,000  members  in  good  standing  shall 
constitute  the  unit  of  representation  of  a  Department  in  the 
National  Encampment,  and  that  a  final  fraction  of  more  than 
half  of  that  unit — that  is,  more  than  500  members — shall  count 
as  1,000.* 

Every  Department  would,  therefore,  be  entitled  to  the  repre 
sentative  at  large  ;  and,  if  composed  of  between  501  and  1,500 
members,  to  one  representative  in  addition — counting  for  repre 
sentation  every  501  members  to  1,500  members  as  1,000,  every 
1,501  to  2,500  as  2,000,  etc. 

In  the  case  stated  the  Department  would  be  entitled  to  elect 
one  representative  at  large  and  one  additional  representative  for 
the  501  members. 

As  suggested  by  the  Comrade  proposing  the  question,  the  par 
agraph  is  not  altogether  lucid,  but  I  think  a  strict  construction 
of  the  whole  section  will  support  my  opinion. 


OPINION  XXI.     JANUARY   15,  1872. 

Reports — Supplemental  should  be  made  to  show  the  true  number  of  members  in  a  Department 
in  good  standing  for  the  quarter  to  which  any  report  relates. 

The  reports  of  a  Department  for  the  third  quarter  of 
1871  exhibited  many  Posts  in  arrears  and  not  reporting. 
If  these  Posts,  or  any  of  them,  pay  their  dues  and  make 
reports  to  secure  representation  in  the  Department  En 
campment,  ought  not  the  Assistant  Adjutant-General  of  a 


L    *  PARAGRAPH  4,  SECTION  i,  ARTICLE  II,  CHAPTER  IV. 

Fourth — Of  one  representative  at  large  from  each  Department,  and  one 
representative  for  each  1,000  members  in  good  standing  therein,  and  one 
additional  representative  for  a  final  fraction  of  more  than  one-half  of  that 
number;  such  representatives  to  be  elected  by  the  Department  Encampment 
as  provided  in  Chapter  III,  Article  IX.  Any  Department  having  less  than 
l,ooo  members  and  more  than  500  shall  be  entitled  to  one  representative  in 
addition  to  one  representative  at  large. 


OF    THE   GRAND    ARMY    OF    THE   REPUBLIC.  35 

Department  to  send  a  supplemental  report  for  that  quarter, 
and  the  Assistant  Quartermaster-General  to  pay  dues 
therefor? 

Would   it  be  their  duty  to  do  so  without  special  orders? 

I  am  of  opinion  that  on  the  reception  of  any  report  from  a 
Post  after  the  consolidated  report  has  gone  forward,  which  would 
vary  the  footings  of  the  consolidated  report,  the  Department 
Commander  should  send  a  supplemental  report,  showing  the 
true  number  of  members  in  his  Department  in  good  standing  for 
the  quarter  to  which  such  report  relates. 

No  order  to  do  so  is  necessary,  but  an  order  may  be  issued  if 
it  is  neglected.  Dues  should  be  paid  for  the  actual  number 
when  ascertained. 

NOTE— See  Opinion  LV. 


OPINION  XXII.      JANUARY  29,  1872. 

i.     Eligibility  to  Membership — If  a  dishonorable  sentence  is  revoked  and  an  honorable  discharge 

is  granted,  then  the  party  thus  discharged  is  eligible. 
•2.     All  persons  eligible  should  not  be  elected  to  membership— Care  should  be  exercised. 

Is  a  cashiered  officer  of  the  army,  who  afterwards  has  the 
disability  of  the  sentence  removed  by  general  order  from 
the  War  Department,  eligible  to  membership  in  the  Grand 
Army  of  the  Republic? 

1.  The  answer  to  the  question  must  turn  upon  the  extent  of 
the  order  removing  the  disability  of  the  sentence.     If  the  officer 
was  granted  an  honorable  discharge  he  is  eligible  to  member 
ship,  though  previously  he  had  been  dishonorably  discharged. 
So  if  a  person  once  dishonorably  discharged  has  the  order  cash 
iering  him  revoked,  and  he  is  reinstated  in  the  army,  he  will 
then  be  eligible  to  membership. 

2.  It  must  be  borne  in  mind,  however,  that  we  ought  not  to 
elect  to  membership  all  persons  who  are  eligible  to  apply  for  it.* 


*  Sections  2  and  3,  Article  II,  Chapter  II,  with  Opinion  XI.     See,  also, 
Opinion  XV. 


36  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


The  Post  receiving  an  application  should  make  proper  inquiries 
in  regard  to  the  character  of  the  applicant,  and  if  there  is  any 
thing  in  his  past  record  or  present  character  which  they  deem 
sufficient  to  make  him  an  unsuitable  companion  for  themselves, 
they  should  reject  the  application.  The  Regulations  place  this 
power  in  their  hands,  and  it  is  expected  that  they  will  exercise  it 
for  the  good  of  the  Order,  with  impartiality,  and  without  personal 
feeling. 

The  question  in  this  case  is  generally  stated,  and  I  can,  there 
fore,  only  answer  in  general  terms.  If  the  facts  of  the  particular 
applicant  for  admission  in  the  present  case  were  detailed  I  might 
make  my  decision  more  specific. 


OPINION  XXIII.     FEBRUARY  3,  1872 

1.  Provisional  Department  Commander — Must  reside  within  the  Department. 

2.  Post  officers — Can    not   forfeit  office  by  absence — No  penalty  can  be  affixed  against  them 

except  by  Court  Martial. 

3.  By-Laws — Post  may  provide  penalties. 

1 .  Can  a  Comrade  be  appointed   Provisional  Comman 
der  of  a  Department  when  he  does  not  reside  within  the 
Department? 

2.  Can  a  Post  provide  by  By-Law  that  an  officer  shall 
forfeit  his  office  by  absence  from  a  certain  number  of  meet 
ings? 

I  answer  the  questions  in  their  order: 

1.  I   think  that  no  Comrade   residing  out  of  the  territorial 
limits  of  a  Department  is  eligible  to  appointment  to  any  Depart 
ment  office. 

2.  The  General  Regulations  fix  the  term  of  officers  of  Posts, 
and  provide,  further,  that  all  charges  shall  be  tried  by  Court 
Martial.*     It  seems  a  fair  inference  that  a  Post  can  not  elect  a 


*See  Opinion  I. 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.     37 


Commander  to  hold  office  during  good  behavior,  or  on  condition 
that  he  will  attend  meetings,  or  with  any  such  conditional  limit 
ation. 

3.  I  think  they  may,  however,  provide  by  By-Law  that  ab 
sence  shall  be  punished  by  fine ;  but  this  penalty  on  a  Post 
Commander  would  have  to  be  recovered  through  a  Court  Mar 
tial  convened  by  the  Department  Commander.  Continued  neg 
lect  of  duties  of  the  office  would  furnish  ground  for  prosecution 
without  any  By-Law. 


OPINION  XXIV.     FEBRUARY  3,  1872. 

Dishonorably  discharged  members — Re-admitted  on  reformation  and  with  the  approval  of  officer 
who  approved  the  sentence. 

Can  a  person  who  has  been  dishonorably  discharged 
from  the  Grand  Army  of  the  Republic  be  re-admitted,  on 
reformation,  by  the  Post  of  which  he  was  a  member? 

There  is  no  provision  in  the  Regulations  on  the  subject  of  the 
re-admission  of  dishonorably  discharged  members.  I  should, 
therefore,  hold  the  opinion  that  such  a  person,  on  reformation, 
might  be  admitted  by  the  Post  which  discharged  him,  on  a  new 
application  and  elected  as  a  recruit,  such  application  being  first 
approved  by  the  officer  who  approved  the  sentence  of  the  Court 
Martial. 


OPINION  XXV.     FEBRUARY  3,  1872. 

Commander-in-Cliief  has  no  power  to  fill  a  vacancy  in  National  Council  of  Administration. 

Has  the  Commander-in-Chief  power  to  fill  a  vacancy 
occuring  in  the  National  Council  of  Administration,  in  the 
interval  between  its  sessions? 


38  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


The  Regulations,  Chapter  IV,  Article  V,  Section  3,*  provide 
that  vacancies  in  the  National  offices  occurring  during  the  year, 
shall  be  filled  by  the  National  Council  of  Administration.  I  can 
not  imagine  any  necessity  for  filling  a  vacancy  except  when  the 
Council  are  together,  and  then  they  can  fill  it  themselves.  The 
members  of  the  Council  have  no  duties  except  in  their  meetings. 
No  doubt,  in  case  of  other  officers  who  have  duties  to  perform 
at  all  times,  the  Commander-in-Chief  may  detail  a  Comrade  to 
act  until  the  Council  of  Administration  meet.  I  think,  therefore, 
in  this  case  the  Commander-in-Chief  has  no  power. 


OPINION  XXVI.     FEBRUARY  24,  1872. 

Posts — Too  late  to  reinstate  a  member  after  he  has  died — One  who  has  been  dropped  is 
no  longer  a  member,  and  the  Post  has  no  power  to  remit  his  dues — Post  funds  can  not  be 
used  to  reinstate  a  member. 

Can  a  Post  reinstate,  without  payment  of  dues,  a  Com 
rade  who  had  been  dropped  for  arrearages,  and  who  died 
after  his  name  had  been  dropped? 

The  power  given  to  Posts  in  Section  3,  Article  IV,  Chapter  V,t 
to  remit  the  dues  of  a  Comrade  six  months  in  arrears,  should  be 
exercised,  if  at  all,  when  the  case  is  reported.  It  must  be  done 
by  the  Post  of  which  he  "is  a  member."  It  is  too  late  after  his 
connection  with  the  Post  is  severed  by  death. 

Section  4  confers  an  entirely  different  power — that  of  restoring 
to  membership  a  former  Comrade  who  had  been  dropped  for 
non-payment  of  dues  for  a  year.  |  That  the  powers  are  dissim- 


*  SECTION  3,  ARTICLE  V,  CHAPTER  IV. 

SECTION  3.     Vacancies  occurring  during  the  year  shall  be  filled  by  the 
Council  of  Administration. 

f  Section  3,  Article  IV,  Chapter  V,  with  Opinion  II. 

t  SECTION  4,  ARTICLE  IV,  CHAPTER  V. 

SECTION  4.     If  a  Comrade  shall  be  one  year  in  arrears  for  dues,  he  shall 
be  dropped  from  the.  roll,  and  reinstated  only  by  the  Post  which  dropped 


OF   THE    GRAND   ARMY    OF   THE    REPUBLIC.  39 


ilar,  appears  from  the  provision  that  the  power  to  remit  dues 
requires  a  two-thirds  vote,  while  the  power  to  reinstate  a  Com 
rade  rests  with  a  majority.  When  a  Comrade  is  dropped  in 
accordance  with  Section  4,  he  ceases  to  be  a  member,  and  the 
Post  of  which  he  "  was  "  a  member,  has  no  longer  any  power  to 
remit  his  dues.  They  must  be  paid  cither  by  himself  or  some 
other  person,  as  a  condition  precedent  to  his  re-admission.  I 
should  consider  the  appropriation  of  Post  funds  to  such  a  pur 
pose  an  unconstitutional  use  of  its  money.  The  present  case 
would  be  decided  by  the  fact  that  no  dead  person  could  be 
admitted  to  a  Post,  either  as  a  recruit  or  by  being  restored  to 
membership. 


OPINION  XXVII.     MARCH   i,  1872, 

1.  A  Provisional  Department  can  be  organized  into  a  Permanent  Department  on  the  order  o 

the  Commander-in-Chief. 

2.  Where  the  Provisional  Commander  assumes  to  act  and  to  organize  the  Permanent  Depart 

ment  without  order  of  the  Commander-in-Chief,  his  acts  are  illegal  and  void. 

3.  The  Commander-in-Chief  may  issue  an  order,  however,  and  ratify  the  act  of  the  Depart 

ment  Commander — He  has  discretionary  power  in  such  cases. 

The  Commander  of  a  Provisional  Department  having 
organized  ten  Posts  therein,  requested  of  the  Commander- 
in-Chief  information  as  to  "the  manner  of  procedure  neces 
sary  to  secure  ' '  for  the  Provisional  Department  "recognition 
as  a  Department." 

i.  In  reply  he  was  informed:  "The  permanent  organization 
of  a  Department  is  by  order  of  the  Commander-in-Chief,  calling 
a  Department  Encampment.  *  *  *  An  order  will  at  once 


him,  by  a  two-thirds  vote,  by  ballot,  of  all  the  members  present,  and  voting, 
at  a  regular  meeting,  upon  payment  of  a  sum  to  be  prescribed  by  a  two- 
thirds  vote  of  the  members  present,  and  voting,  at  a  regular  meeting;  said 
sum  not  to  be  less  than  the  amount  charged  as  muster-in  fee.  If  elected,  he 
shall  be  re-obligated :  Provided,  That  he  may  be  re-obligated  in  any  Post 
within  whose  jurisdiction  he  may  reside,  upon  the  written  request  of  the  Pos.t 
reinstating  him. 


40  OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


be  issued  upon  your  naming  the  time  and  place  for  the  assembly 
of  the  Department  Encampment,  and  forwarding  the  Charter  fee 
of  $20,  required  by  the  Regulations.  This  matter  will  receive 
prompt  attention  at  National  Headquarters  in  order  that  there 
may  be  no  delay  in  the  organization." 

2.  In  reply  to    the   next  letter,    saying,    ''Please   hurry  up 
Charter,"  he  was  informed  that  "the  order  for  Department  En 
campment  can  not  be  issued  before  a  full  and  complete  report  is 
received  from  your  Department."     This  condition  was  rendered 
necessary  by  the  failure  of  the   Provisional  Commander  to  for 
ward  reports  and  dues  for  the  quarter  next  preceding,  which  had 
meanwhile  become  due. 

Nothing  further  was  received  until  the  receipt  of  a  communi 
cation  informing  the  Commander-in-Chief  that  the  Department 
had  been  permanently  organized,  without  orders  from  the  Com 
mander-in-Chief. 

Was  the  action  of  the  Provisional  Commander  in  accordance 
with  the  Rules  and  Regulations?  Is  it  valid?  What  is  the  power 
and  duty  of  the  Commander-in-Chief  in  the  matter,  according 
to  the  Rules  and  Regulations? 

3.  The  mode  of  organizing  a  Permanent  Department  is  pre 
scribed  in   the  Regulations,  Chapter  V,  Article  X,  Section    2.* 

*  ARTICLE  X,  CHAPTER  V. 

PROVISIONAL    DEPARTMENTS. 

SECTION  I .  In  States  or  Territories  where  the  Grand  Army  of  the  Re 
public  is  not  established,  the  Commander-in-Chief  may  appoint,  and  cause 
to  be  mustered  in,  a  Provisional  Commander,  who  shall  appoint — with  the 
approval  of  the  Commander-in-Chief — from  Comrades  of  the  Grand  Army  of 
the  Republic,  a  Senior  and  Junior  Vice-Commander,  an  Assistant  Adjutant- 
General  and  an  Assistant  Quartermaster-General.  He  may  appoint  four 
Aides-de-Camp.  The  Provisional  Commander,  the  Senior  and  Junior  Vice- 
Commanders,  the  Assistant  Adjutant-General,  the  Assistant  Quartermaster- 
General,  and  five  Comrades  selected  by  the  Provisional  Commander,  shall 
constitute  the  Council  of  Administration.  The  officers  thus  appointed  shall 
have  for  the  time  being  all  the  powers  and  duties  of  Permanent  Department 
officers,  and  make  returns  in  accordance  with  Article  II  of  this  Chapter. 

SEC.  2.  When  six  Posts  are  organized  in  any  Provisional  Department  the 
Commander-in-Chief  shall  order  a  meeting  of  a  Department  Encampment. 
When  so  assembled  it  shall  effect  a  permanent  Department  organization. 


OK   THE    GRAND    ARMY    OF   THE    REPUBLIC.  41 


The  order  for  organization  must  be  issued  by  the  Commander- 
in-Chief.  The  action  of  the  Provisional  Commander  is,  there 
fore,  illegal  and  void. 

The  further  question.  "What  is  the  power  and  duty  of  the 
Commander-in-Chief  in  the  premises?  "  is  not  so  easily  answered. 
He  has  the  power  to  declare  the  law,  and  to  remove  and  Court 
Martial  the  Provisional  Commander  who  has  violated  it;  but 
whether  he  should  exercise  that  power  in  the  present  instance 
depends  upon  how  such  action  will  affect  the  interests  of  the 
Grand  Army.  If  the  act  of  the  Department  Commander  was  a 
perverse  and  arbitrary  exercise  of  authority  not  delegated  to  him, 
he  should  be  punished,  and  his  action  declared  void ;  but  if  it 
appears  that  he  took  the  letter  from  Headquarters  as  approving 
the  idea  of  the  organization,  and  innocently  went  beyond  his 
power,  the  Commander-in-Chief  may  ratify  the  action  now. 
Either  course  will  be  legal,  and  the  character  of  the  Provisional 
Department  Commander  would  furnish  a  reason  for  deciding  one 
way  or  the  other.  If  the  Commander-in-Chief  issues  an  order 
ratifying  the  act  of  the  Department  Commander,  as  he  has  entire 
discretion  in  the  premises  so  to  do,  that  will  put  the  Department 
on  a  legal  foundation. 

I  can  not  presume  to  say  what  is  best  to  be  done  in  the  prem 
ises.  The  power  is  clear.  The  expediency  of  using  it  is  for 
the  Commander-in-Chief  to  decide  upon. 


OPINION  XXVIII.     MARCH   16,  1872. 

Commander  of  Post  may  require  application  for  a  transfer  paper  to  be  reduced  to  writing. 

Can  the  Commander  of  a  Post  require  an  application  for 
a  transfer  paper  to  be  made  in  writing? 

It  is  a  general  rule  of  parliamentary  law  to  require  any  motion 
to  be  presented  in  writing,  at  the  suggestion  of  the  presiding 
officer  or  of  any  member.  The  meetings  of  Posts  are  governed, 
in  the  absence  of  express  regulations,  by  the  general  principles  of 


42  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


deliberative  bodies.  I  think,  therefore,  the  Post  Commander 
has  discretionary  power  to  require  such  an  application  as  the 
question  relates  to,  to  be  reduced  to  writing  before  entertaining  it.* 


OPINION  XXIX.     APRIL  2,  1872. 

It  is  the  duty  of  the  Commander  of  a  Post  to  grant  a  transfer  or  withdrawal  card  to  a  Comrade 
in  good  standing  when  it  is  applied  for  at  a  meeting  of  the  Post. 

Has  a  Post  Commander  authority  to  transfer  or  discharge 
Comrades  without  a  vote  of  the  Post  upon  the  application? 

The  Regulations  make  it  the  imperative  duty  of  the  Com 
mander  to  grant  a  Comrade  in  good  standing  applying  therefor 
at  a  meeting  of  the  Post,  a  transfer  or  discharge.!  A  vote  of  the 
Post  instructing  the  Commander  not  to  do  so  would  be  void. 

The  reason  for  requiring  the  application  to  be  made  at  a  Post 
meeting  is  not  that  a  vote  may  be  taken,  but  that  the  members 
may  know  of  the  application,  and  may  state  any  legal  objection 
to  it. 


OPINION  XXX.     APRIL  15,  1872. 

1.  Post  has  no  right  to  order  the  publication  of  any  sentence  of  a  Court  Martial. 

2.  No  information  as  to  the  causes  or  means  of  the  rejection  of  applications  for  membership 

shall  be  divulged. 

If  a  Post  Court  Martial  a  Comrade,  can  they  reveal  the 
sentence  to  the  outside  world,  or  can  the  injunction  of 
secrecy  be  removed  if  the  Post  vote  to  do  so,  and  the  case 
be  exposed  to  people  generally? 


*  Section  2,  Article  IV,  Chapter  II,  seems  to  make  either  a  verbal  or  writ 
ten  request  sufficient  on  the  part  of  the  applicant.  See  the  section  referred 
to,  with  Opinion  III. 

fSee  Sections  2  and  3,  Article  IV,  Chapter  II,  following  Opinion  III. 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.     43 


1.  It  has  not  been  our  practice  to  divulge  any  of  the  pro 
ceedings  of  Posts,  except  the  names  of  officers  elected.     And 
although  there  is  no  direct  injunction  of  secrecy  in  regard  to  the 
sentence    of    Courts    Martial,  the    spirit   of    our    regulations  is 
against  such  publication.     It  seems  wrong  that  any  punishment 
which  we  inflict  should  extend   beyond  our  Order.     I  do  not 
think  we  have  any  right  to  divulge  to  the  world  any  information 
concerning  a  man's  character  which  we  have  obtained  by  means 
of  his  membership  in  the  Grand  Army. 

2.  The  Regulations  do  prescribe  that  no  information  as  to 
the  causes  or  means  of  the  rejection  of  applications  for  mem 
bership,  shall  be  divulged,*  and  I  think  the  same  reason  would 
forbid  the  publication  of  any  sentence  of  a  Court  Martial. 

I  am  of  opinion,  therefore,  that  the  Post  has  no  right  to  order 
such  publication. 


OPINION  XXXI.     APRIL   15,  1872. 

A  woman  who  has  served  as  Daughter  of  a  Regiment  does  not  come  within  the  class  of  persons 
who  are  eligible  to  membership  in  the  Grand  Army  of  the  Republic,  and  the  action  of 
a  Post  in  admitting  such  an  one  would  be  illegal  and  void. 

The  question  is  proposed,  whether  a  woman  who  served 
with  the  First  Regiment,  Rhode  Island  Detached  Militia, 
as  Daughter  of  the  Regiment,  and  who  received  a  dis 
charge  in  ordinary  form  from  the  service  as  Daughter  of 

*  ARTICLE   XIII,  CHAPTER   V. 

SECTION  I.  The  Ritual  and  unwritten  forms  of  the  Grand  Army  of  the 
Republic,  the  names  of  persons  causing  the  rejection  of  candidates  for 
membership,  or  any  information  as  to  the  cause  or  means  of  such  rejection, 
shall  be  kept  secret ;  but  any  part  of  the  proceedings  of  Post  Encampments 
may  be  published,  if  ordered  by  vote  of  Post,  approved  by  the  Department 
Encampment,  Department  Commander  or  Commander-in-Chief,  and  any 
part  of  the  proceedings  of  a  Department  Encampment  may  be  published  if 
ordered  by  the  Encampment  or  Department  Commander,  or  Commander- 
in-Chief;  and  any  part  of  the  proceedings  of  the  National  Encampment 


44  OPINIONS   OF    JUDGE   ADVOCATES-GENERAL 


the  Regiment,  and  who  was  afterwards  received  as  a  mem 
ber  of  the  Post  of  the  Grand  Army  of  the  Republic,  was 
lawfully  mustered  into  our  Order? 

I  do  not  know  of  any  position  in  the  army,  according  to  the 
Regulations,  described  as  Daughter  of  the  Regiment.  Our 
Regulations  prescribe  as  a  condition  for  membership  that  the 
applicant  shall  have  been  a  soldier  or  sailor  in  the  army,  navy, 
or  marine  corps  of  the  United  States,  etc.  Whatever  a  Daugh 
ter  of  the  Regiment  may  have  been,  I  do  not  understand  that 
she  was  a  soldier  in  the  United  States  army.  She  may  have 
done  good  service  in  the  suppression  of  the  Rebellion,  as  nurses 
in  hospitals,  and  agents  of  the  Sanitary  Commission  and  Chris 
tian  Commission,  and  many  patriotic  citizens  at  home  did,  but 
as  she  does  not  come  in  the  classes  of  persons  whom  our  Regu 
lations  make  eligible  to  membership,  I  think  the  action  of  the 
Post  admitting  her  was  illegal  and  void. 

The  discharge  which  was  given  her,  I  suppose,  was  a  compli 
mentary  testimonial  to  her  patriotism,  rather  than  a  certificate 
that  she  had  been  technically  in  the  service. 

NOTE— See  Opinion  CIV. 


OPINION  XXXII.     APRIL   15,  1872. 

A  Post  may,  at  the  request  of  a  Comrade,  inquire  into  the  character  of  that  Comrade  and  read 
the  evidence  to  the  Post. 

Is  it  proper  for  a  Post  by  vote  to  collect  and  have  read  in 
open  Post,  evidence  involving  the  character  and  reputation 
of  a  Comrade? 


may  be  published,  if  ordered  by  the  National  Encampment  or  Commander- 
in-Chief. 

SEC.  2.  Any  Comrade  convicted  of  divulging  any  of  the  private  affairs 
of  the  Grand  Army  of  the  Republic,  or  of  violating  any  of  the  provisions 
of  this  Article,  shall  be  dishonorably  discharged. 

NOTE— See  Opinion  XXXII. 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.     45 


The  facts  upon  which  this  question  arises  are  as  follows : 
A  Comrade  having  been  indicted  for  larceny,  and  having 
pleaded  guilty,  was  sentenced  and  committed  to  jail.  He 
wrote  to  an  officer  of  the  Post  of  which  he  was  a  member, 
asking  the  aid  of  the  Post  to  procure  his  pardon  or  relief. 
The  Post,  by  vote,  directed  the  Commander  to  collect  in 
formation  in  the  case.  He  wrote  to  the  Comrade  impris 
oned  and  the  Sheriff  of  the  county,  and  the  replies  to  these 
letters  were,  by  vote  of  the  Post,  read  in  open  meeting. 

From  this  action  of  the  Post  the  Comrade  who  asks  the 
question  appeals. 

I  should  have  no  hesitation  in  answering  the  general  question 
in  the  negative.  If  any  Comrade  knows  anything  in  the  con 
duct  of  any  other  which  makes  him  an  unfit  associate  of  the  mem 
bers  of  the  Post,  he  should  prefer  charges  and  have  his  knowl 
edge  brought  before  a  Court  Martial  in  the  form  of  evidence. 

But  this  case  seems,  as  suggested  by  the  Post  Commander,  an 
exceptional  one.  The  Comrade  here  invites  the  inquiry  of  his 
Comrades  into  his  conduct  and  circumstances  by  asking  their 
assistance.  He  writes  to  them,  confessing  his  guilt.  I  think 
that  any  right  he  may  have  had  to  object  to  the  publication  in 
Post  meeting  of  evidence  tending  to  convict  him  of  crime  was 
waived  by  his  communication  to  them  asking  their  interference, 
and  certainly  by  his  second  communication,  directed  to  the  Ad 
jutant,  and  evidently  intended  by  him  to  be  shown  to  the  Post. 
The  objection  that  the  same  Comrades  who  heard  this  confession 
might  be  detailed  to  sit  on  a  Court  Martial  for  the  trial  of  a  Com 
rade  is  not  so  valid  as  the  same  objection  would  be  to  their  sit 
ting  on  a  jury  in  a  common  law  court. 

In  the  first  place  the  record  of  the  conviction  of  the  Comrade 
by  the  State  court  would  supersede  his  written  confessions  as  evi 
dence  before  the  Court  Martial,*  and  he  would  probably  plead 

*  SECTION  9,  ARTICLE  VI,  CHAPTER  V. 

SECTION  9.  In  case  the  accused  is  charged  with  an  offense  under  Par 
agraph  3,  Section  I,  of  this  Article,  the  record  of  his  conviction  by  a  court 
of  competent  jurisdiction  shall  be  prima  fade  evidence  of  his  guilt  of  the 
offense  of  which  he  is  so  charged. 


46  OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


guilty,  as  he  did  at  first.  And  secondly,  if  he  desired  it,  the 
Department  Commander,  under  our  Regulations,  would  detail  a 
Court  Martial  from  other  Posts  whose  members  were  not  ac 
quainted  with  the  facts.* 

In  the  present  case,  therefore.  I  think  the  action  of  the  Post 
was  right. 


OPINION  XXXIII.     APRIL  20,  1872. 

Section  i,  Article  VII,  Chapter  I,  meaning  of— Post  must  pursue  the  mode  provided  in  the 
Regulations — Where  Regulations  are  silent,  Post  may  provide  by  By-Law;  and  where 
the  Post  does  not  choose  a  mode,  the  power  is  in  the  hands  of  the  Post  Commander. 

The  question  is  proposed  :  What  is  the  meaning  of  the 
expression  "not  otherwise  provided  for"  in  the  clause  of 
Chapter  II,  Article  VIII,  Section  I,  of  the  Regulations, t 
which  makes  it  the  duty  of  the  Post  Commander  to  detail 


*  SECTION  7,  ARTICLE  VI,  CHAPTER  V. 

SECTION  7.  Any  Comrade  ordered  for  trial  before  a  Post  Court  Martial 
may  request  in  writing  to  be  tried  by  a  general  Court,  assigning  his  objec 
tions  to  a  trial  by  the  Post  Court.  On  receiving  such  request  the  Post  Com 
mander  shall  forward  the  same  to  the  Department  Commander,  with  such 
indorsement  as  he  shall  see  fit  to  make,  together  with  the  charges  preferred. 
If  the  objections  appear  to  be  valid  and  well  grounded  the  Department 
Commander  shall  order  a  general  Court  Martial  for  the  trial  of  the  case; 
but  if,  in  his  opinion,  they  should  be  insufficient,  he  shall  return  the  request 
with  an  indorsement  to  that  effect,  and  the  trial  shall  proceed  as  if  no  excep 
tion  had  been  taken. 

fARTICLE  VIII,  CHAPTER  II. 

DUTIES    OF   OFFICERS. 

SECTION  I.  It  shall  be  the  duty  of  the  Post  Commander  to  preside  at  all 
meetings  of  the  Post ;  to  enforce  a  strict  observance  of  the  Rules  and  Regu 
lations  and  By- Laws,  and  all  orders  from  proper  authority;  to  detail  all 
officers  and  committees  not  otherwise  provided  for;  to  approve  all  orders 
drawn  upon  the  Quartermaster  for  appropriations  of  money  made  and  passed 
at  a  stated  meeting  of  the  Post;  to  forward  the  returns  required  by  Article 
II,  Chapter  V;  and  to  perform  such  other  duties  as  his  charge  may  require 
of  him. 


OF    THE   GRAND    ARMY    OF    THE    REPUBLIC.  47 


all  officers  and  committees  not  otherwise  provided  for? 
Does  it  relate  to  officers  and  committees  whose  appoint 
ment  is  not  provided  for  in  the  Regulations,  or  by  the 
Post? 

The  expression,  in  my  opinion,  imposes  a  sort  of  residuary  or 
alternative  power  and  duty  upon  the  Post  Commander.  If  the 
Regulations  prescribe  the  mode  of  selecting  a  certain  officer, 
neither  the  Post  nor  the  Commander  can  pursue  a  different  mode 
of  appointment.  If  the  Regulations  are  silent  and  the  Post 
sees  fit  to  provide  by  By-Law  or  by  a  vote  in  a  particular  case, 
it  may  do  so ;  but  in  case  of  the  selection  of  a  committee  or  the 
detail  of  an  officer,  when  the  Regulations  are  silent  as  to  the 
method  of  selection,  and  the  Post  does  not  choose  any  method, 
the  clause  in  question  places  the  power  and  duty  in  the  hands  of 
the  Post  Commander. 


OPINION  XXXIV.     APRIL  20,  1872. 

1.  Post  can  not  hold  executive  session. 

2.  Post  has  no  executive  powers. 

3.  Post  can  not  exclude  a  Department  officer. 

4.  Post  may  consult  its  own  convenience  in  regard  to  admitting  Comrades  visiting  from  other 

Posts. 

The  question  proposed  :  ' '  Can  a  Post  refuse  to  admit 
a  Department  officer  to  its  rooms  on  the  ground  that  it  is 
holding  an  executive  session?  Can  a  Post  exclude  Com 
rades  belonging  to  other  Posts  on  the  same  grounds? 

1.  Our  Regulations  do  not  recognize  any  such  thing  as  an 
executive  session.    The  term  is  a  misnomer  when  applied  to  any 
meeting,  except  a  session  of  a  legislative  body,  which  possesses, 
also,  certain  executive  powers — like  the  power  which  the  United 
States  Senate  has  of  confirming  or  rejecting  certain  appointments 
of  the  President,  or  its  power  of  ratifying  treaties,  etc. 

2.  A  Post  of  the  Grand  Army  of  the  Republic  has  no  execu 
tive  powers,  and,  consequently,  can  not  hold  executive  sessions. 


48  OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


3.  There  may  frequently  come  before  a  Post  business  which 
it  would  not  care  to  have  discussed  by  or  before  Comrades  not 
members.     In  such  a  case,  on  the  approach  of  a  Department 
officer  on  duty,  such  business  should  be  temporarily  laid  on  the 
table,  and  the  officer  admitted. 

4.  Comrades  from  other  Posts  could  not,  however,  claim  the 
same  precedence,  and  the  Post  would  be  at  liberty  to  consult  its 
own  convenience  about  admitting  them,  with  due  regard,  always, 
to  the  principles  of  courtesy  and  fraternity. 


OPINION  XXXV.     MAY  25,  1872.* 

1.  A  Comrade  dropped  for  non-paymnt  of  dues  can  not  join  a  new  Post  as  an  initiate. 

2.  A  Comrade  who  has  been  dropped  for  non-payment  of  dues  can  only  be  reinstated  by  the 

Post  which  dropped  him. 

3 .  Can  only  pass  from  membership  in  one  Post  to  another  by  transfer,  or  by  honorable  discharge. 

4.  Transfer  card  and  honorable  discharge — Difference. 

5.  Comrade  in  arrears  can  leave  his  Post  only  by  dishonorable  discharge  or  by  being  dropped. 

Can  a  Comrade  who  has  been  dropped  from  the  rolls  of 
his  Post,  for  non-payment  of  dues,  join  a  new  Post,  as  an 
initiate,  without  first  obtaining  an  honorable  discharge  from 
the  Post  of  which  he  was  previously  a  member? 

Should  a  Charter  be  granted  to  a  body  of  Comrades  who 
desire  to  form  a  new  Post,  when  such  Comrades  have  been 
dropped  from  their  old  Posts  for  arrears  of  dues,  and  have 
not  been  regularly  discharged  therefrom? 

Can  a  Department  Commander  issue  a  Charter  to  form  a 
new  Post  to  members  of  an  existing  Post  who  are  in  arrears 
for  their  dues? 

i.  As  is  suggested  by  the  Comrade  proposing  the  first  two 
questions,  the  second  is  involved  in  the  first ;  and  I  answer  both 
in  the  negative.  Chapter  V,  Article  IV,  Section  4,  decides  the 


*See  also  Opinion  XLII,  CVIII,  CXV,  CXVI. 


OF   THE   GRAND    ARMY    OF   THE    REPUBLIC.  49 


point.*  The  word  "reinstated  "  in  that  section  must  signify  re 
instated  as 'a  member  of  the  Grand  Army;  and  the  Section  pre 
scribes  in  effect,  that  such  a  person  as  it  refers  to  can  only  rejoin 
the  Order  by  being  admitted  through  the  Post  which  dropped 
him.  The  same  answer  must  be  given  to  the  third  question. 
Chapter  II,  Article  I,  Section  i,t  prescribes  that  a  new  Post  shall 
be  formed  of  persons  "eligible  to  membership  in  the  Grand  Army 
of  the  Republic,"  evidently  contemplating  persons  not  already 
members.  There  are  only  two  classes  of  persons  who  fulfill  this 
requirement,  former  Comrades,  honorably  discharged,  and  per 
sons  possessing  the  qualifications  mentioned  in  Chapter  I,  Article 
IV,  who  have  never  been  members  of  the  Grand  Army  of  the 

Republic.^ 

A  Comrade  can  leave  the  Post  to  which  he  belongs,  only 
by  transfer,  to  join  an  existing  Post ;  by  honorable  discharge, 
which  places  him  in  the  same  relation  to  the  Order  which  he 
occupied  before  he  first  entered  it ;  by  dishonorable  discharge 
by  Court  Martial,  which  obliges  him  to  apply  for  re-admission, 
through  the  Post  of  which  he  was  a  member,  with  the  approval 
of  the  officer  who  approved  his  sentence ;  or  by  being  dropped 
for  non-payment  of  dues,  when  he  can  only  be  re-admitted  to  the 
Order  by  vote  of  the  Post  which  formerly  bore  his  name  on  its  roll. 
A  Comrade,  in  good  standing,  may  obtain  a  transfer  paper,  if  he 
wishes  to  join  an  existing  Post,  or  an  honorable  discharge  if  he 
is  to  become  a  Charter-member  of  a  new  Post. 

A  Comrade,  who  is  in  arrears,  can  only  leave  his  Post  by 
dishonorable  discharge,  or  by  being  dropped  from  the  rolls.  In 
either  case  he  is  not  eligible  to  join  any  other  existing  Post, 
or  form  part  of  a  new  one. 

*See  Section  4,  Article  IV,  Chapter  V,  at  close  of  Opinion  XXVI. 
t  ARTICLE  I,  CHAPTER  II. 

FORMATION. 

SECTION  I.  A  Post  may  be  formed  by  the  authority  of  a  Department 
Commander,  or  of  the  Commander-in-chief  (where  no  Department  organiza 
tion  exists),  on  the  application  of  not  less  than  ten  persons  eligible  to  mem 
bership  in  the  Grand  Army  of  the  Republic;  and  no  Post  shall  be  recognized 
by  the  members  of  the  Grand  Army  of  the  Republic  unless  acting  under  a. 
legal  and  unforfeited  Charter. 

JSee  Article  IV,  Chapter  I,  at  close  of  Opinion  IV. 
4 


50  OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


OPINION  XXXVI.     JUNE  5,  1872.* 

1.  Court  Martial — United  States  Army  Regulations  to  govern. 

2.  The  Judge  Advocate  should  be  detailed  with  reference  to  his  qualifications. 

3.  Applicants  for  memberships  may  be  admitted  without  reference  to  their  residence. 

Must  a  Post  Court  Martial  be  composed  of  three  mem 
bers  only,  and  must  they  be  Post  officers?  If  so,  must 
the  junior  officer  act  as  Judge  Advocate? 

Should  a  Post  muster  applicants,  who  reside  nearer  any 
other  Post,  without  first  obtaining  permission  from  the  Post 
nearest  the  residence  of  the  applicant? 

1.  Our  Rules  and  Regulations  are  silent  upon  the  points  sug 
gested  by  the  first  question. f     They  must,  therefore,  be  decided 
by   military  usage   and    United   States  Army   Regulations.      In 
regard  to  the  constitution  for  the  Court,  it  may  be  said  that  our 
universal  practice  has  been  to  consider  any  Comrade  eligible  to 
any  office.     Details  for  Courts  Martial  may,  therefore,  be  made 
from  any  Comrade  in  the  jurisdiction  of  the  officer  ordering  the 
Court.     There  is  no  intimation  in  our  Rules  and  Regulations 
that  Post  Courts  Martial  shall  correspond  to  regimental  Courts 
Martial  in  the  army,  or  shall  be  differently  constituted  from  our 
Department    or   National  Courts    Martial;    and,    I   think,    that 
the  United  States  Regulations  for  the  organization  and  govern 
ment  of  general  Courts  Martial  apply  to  all  Courts  of  the  Grand 
Army  alike. 

2.  It  was  usual,  in  the  service,  for  the  officer  ordering  the 
Court,  to  exercise  a  wide  discretion  in  deciding  of  how  many 

*  NOTE — See  Opinion  I. 

f  Changed  by  Rule  5,  Court  Martial,  revising  Article  VI,  Chapter  V.  Ap 
proved  by  the  National  Encampment,  1879,  to-wit: 

Fifth. — Post  Courts  Martial  shall  be  composed  of  not  less  than  five  (5) 
nor  more  than  nine  (9)  members  and  a  Judge  Advocate,  all  of  whom  shall 
be  appointed  by  the  Post  Commander  in  a  special  order  convening  the 
Court.  He  shall  name  the  Comrade  who  shall  act  as  the  President  of  the 
Court,  and  the  other  members  of  the  Court  shall  rank  before  the  Court 
according  to  their  numbers  or  names  in  the  said  special  order  appointing 
the  Court. 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.     51 


members  the  exigencies  of  the  service  would  permit  the  Court 
to  consist.  I  think  that,  in  detailing  our  Courts,  the  same  dis 
cretion  may  .be  exercised.  The  Judge  Advocate  should  be 
detailed  with  reference  to  his  qualifications  for  performing  his 
duties  without  regard  to  his  official  position. 

3.  Posts  may  admit  properly-qualified  applicants  without 
regard  to  their  residence.  Unless  such  persons  have  made  pre- 
vions  applications  for  membership,  no  other  Post  has  any  juris 
diction  in  the  matter. 


OPINION  XXXVII.     JULY   i,  1872.* 

1.  Report  of  Investigating  Committee  on  application  must  be  presented  in  writing,  and  on  the 

application. 

2.  Post  can  not  act  on  the  verbal  report  of  an  investigating  committee. — Tf  so  acted  on,  action 

is  illegal. 

3.  Where  verbal  report  has  been  acted  upon,  and  applicant  has  been  rejected,  the  ballot  may 

be  renewed  before  the  time  specified  in  the  Rules  and  Regulations. 

Can  a  Post  ballot  on  the  application  of  a  person  for  mem 
bership,  when  the  application  is  not  presented  by  the  Com 
mittee  of  Investigation  at  the  meeting  when  said  ballot  is 
cast? 

Can  the  verbal  report  of  a  Committee  on  Investigation  be 
accepted  and  acted  on  by  a  Post,  and  the  candidate  there 
upon  balloted  for? 

If  the  above  acts  on  a  Post  be  illegal,  can  a  candidate, 
who  has  been  balloted  for  as  above,  and  rejected,  be  bal 
loted  for  again  before  the  time  prescribed  by  the  Rules  and 
Regulations? 

The  facts  which  give  rise  to  the  above  questions  are 
stated  substantially  as  follows : 

i.  An  application  was  received  and  properly  referred.  At  a 
subsequent  meeting  the  committee  stated,  verbally,  that  they  had 


*See  Opinion  XI,  and  Sections  of  Rules  and  Regulations  there  set  out. 


52  OPINIONS    OF    JUDGE   ADVOCATES-GENERAL 


signed  a  favorable  report  upon  the  application,  and  had  sent  the 
papers  by  a  Comrade  to  the  Post  Commander,  who  was  absent 
from  the  meeting.  The  Senior  Vice  Commander,  presiding, 
ruled  that  this  statement  was  sufficient  as  a  report,  and  put  the 
question  to  a  vote  upon  the  applicant's  admission.  The  appli 
cant  was  rejected. 

2.  Chapter  II,  Article  II,  of  the  Rules  and  Regulations,  pre 
scribes  very  exactly  the  mode  of  proceeding  upon  an  application 
for  admission.     Section  3  provides  that  the  committee  shall  make 
their  report  at  a  meeting  subsequent  to  their  appointment,  by 
endorsement  upon  the  application  ;  and  Section  4  continues,  "after 
the  reading  of  the  report"   etc.      Clearly,  therefore,  the  report 
must  be  in  writing,  and  on  the  application,  and  must  be  presented 
in  that  form  at  the  meeting.     The  committee  need  not  be  pres 
ent  to  offer  it.     It  may  be  previously  forwarded  to  the  Adjutant, 
and  read  by  him  or  the  Post  Commander  at  the  meeting,  but 
until  it  is  in  possession  of  the  Post,  in  writing,  it  can  not  be  acted 
on.     It  may  be  said  that  the  production  of  the  application  with 
the  report  indorsed  upon  it,  is  only  evidence  that  it  has  been 
made,  and  that  the  statement  of  that  fact  by  the  committee  is  just 
as  good  evidence  of  it,  if  it  is  not  doubted  or  contradicted.   This 
view  would  be  pertinent  if  the  application,  after  being  filed  with 
the  report  upon  it,  had  been  lost.     It  would,  indeed,  then  be 
allowable    to  supply  a  new  copy  from  memory.     But  a  report 
required  to  be  in  writing,  is  not  a  report  of  the  committee  for  the 
purpose  of  action  by  the  Post,  until  it  is  actually  filed  and  in 
their  possession  at  a  meeting.     Until  then,  it  is  constructively  in 
the  hands  of  the  committee,  and  is  actually  liable  to  be  changed 
by  them. 

3.  The  first  two  questions,  then,  I  answer  in  the  negative, 
applying  the  limitation  to  the  first,  that  the  report  may  be  sent 
in,  as  well  as  actually  presented  by  the  hands  of  the  committee. 
It  only  remains  to  say,  in  answer  to  the  third  question,  that  the 
proceedings  should  be  resumed  at  the  point  where  the  irregular 
ity  occurred,  that  is,  the  report,  indorsed  on  the  application, 
should  be  filed  ;  and  at  any  meeting  of  the  Post,  in  the  proper 
place  in  the  order  of  business,  the  report  should  be  read  and  a 
new  ballot  taken. 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.     53 


OPINION  XXXVIII.      JULY  19,  1872. 

A  Comrade  may  use  the  initials  "  G.  A.  R."  on  his  business  sign. 

Has  a  Comrade  the  right  to  use,  in  assisting  in  his  own 
private  business,  the  initials  ''G.  A.  R.?" 

The  facts  which  suggest  the  question  are  as  follows : 

A  Comrade  engaged  in  business  had  the  letters  "  G.  A.  R." 
painted  upon  his  business  sign,  and  his  Comrades  in  the  Post 
objected  to  this  use  of  the  initials  of  the  Order. 

This  question  can  not  be  brought  within  the  scope  of  our  Reg 
ulations  or  discipline.  It  is  merely  one  of  good  taste  and  pro 
priety,  which  must  be  settled  by  the  individual,  and  where  the 
largest  liberty  must  be  permitted. 

As  a  matter  of  right  two  of  the  objects  of  our  Order  are  frater 
nity  and  chanty,  which  include  the  assistance  of  Comrades,  and 
as  the  duty  and  privilege  are  reciprocal,  which  imply  also  the 
reception  of  aid  and  favor  as  much  as  the  giving  of  them.  If  a 
Comrade  in  good  standing  and  a  worthy  member  of  the  Order, 
he  may  claim  from  others  relief  and  help  when  he  needs  them, 
and  with  that  object  may  make  known  his  membership  in  an  in 
telligible  manner.  It  is  difficult  to  see  why  he  may  not  invite 
the  patronage  of  his  Comrades  to  a  lawful  business,  when  he 
does  not  ask  charity,  but  gives  an  equivalent  for  the  aid  desired 
by  publishing  the  fact  of  his  connection  with  the  Grand  Army  of 
the  Republic,  by  painting  the  letters  on  his  sign  as  well  as  by 
wearing  the  badge  or  presenting  a  traveling  card  or  letters  of 
introduction. 

A  manufacturer  of  cigars,  for  instance,  may  call  a  certain 
brand  the  "  G.  A.  R. ,"  and  if,  by  so  doing,  he  gets  the  patronage 
of  his  Comrades,  he  will  have  accomplished  a  fair  and  ingenious 
business  device,  and  will  certainly  have  expressed  a  very  compli 
mentary  opinion  of  the  value  of  membership  in  the  Order. 

So  the  composer  of  a  piece  of  music  may  dedicate  it  to  the 
Grand  Army,  or  to  a  Post,  or  may  name  it  with  reference  to  the 
Grand  Army  of  the  Republic  ostensibly  as  a  compliment,  but 


54  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


really  in  order  to  promote  the  sale  of  it,  and  this  would  be  a 
legitimate  business  transaction. 

I  can  not  separate,  in  principle,  these  supposed  cases  from  the 
one  under  consideration.  In  all  of  them  the  connection  of  the 
person  with  the  Grand  Army  of  the  Republic  is  used  by  him  to 
promote  his  business  interests;  and  if  his  business  is  honorable, 
he  profits  by  his  membership  without  injuring  the  Order,  his 
Comrades,  or  the  public. 


OPINION  XXXIX.     SEPTEMBER  2,  1872. 

The  holder  of  a  transfer  card  not  liable  to  dues. 

What  is  the  condition  of  a  Comrade,  who,  having  taken 
a  transfer  paper  to  join  another  Post,  has  delayed  two 
years  to  present  it,  and  now  wishes  to  rejoin  the  Post  from 
which  he  took  the  paper?  Should  he  pay  the  dues  which 
have  been  assessed  for  two  years  past? 

The  only  provision  of  the  Rules  and  Regulations  on  this  sub 
ject  are  found  in  Articles  III  and  IV  of  Chapter  II.  Article  IV, 
Section  2,  provides  that  until  the  reception  of  a  Comrade  who 
has  taken  a  transfer  paper,  by  some  other  Post,  "he  shall 
remain,  for  all  purposes  of  discipline  only,  under  the  jurisdiction 
of  the  Post  granting  the  transfer  paper;"  and  Article  III,  Sec 
tion  i,  that  "a  member  of  any  Post  having  a  transfer  card,  may 
be  admitted  to  another  Post,  by  a  two-thirds  vote  by  ballot, 
after  having  his  name  proposed  and  referred,  as  in  case  of  an 
applicant  for  membership,"  the  number  of  ballots  required  to 
elect  constituting  the  only  difference  in  the  reception  of  such  a 
candidate  from  the  admission  of  a  recruit. 

There,  is  no  provision  requiring  a  transfer  paper  to  be  pre 
sented  within  a  limited  time,  as  perhaps  there  should  be ;  and 
the  neglect  of  the  Comrade,  so  long  continued,  is  no  violation 
of  the  Regulations.*  The  first  paragraph  quoted  above  seems 


*The  validity  of  a  transfer  paper  is  now  limited,  by  amendment  to  Chap 
ter  II,  Article  IV,  Section  2,  National  Encampment,  May,  1874.  See 
Opinion  III. 


OF  THE  GRAND  ARMY  OF  THP;  REPUBLIC.     55 


to  settle  the  question  of  dues.  The  payment  of  dues  is  not  a 
part  of  discipline  in  the  intent  of  that  Section.  The  man's  name 
must  have  been  dropped  from  the  rolls  of  the  Post  when  his 
transfer  paper  was  granted,  and  I  think  he  stands  in  no  other 
relation  to  it  than  the  relation  he  occupies  to  any  other  Post 
which  he  might  wish  to  join.  I  am  of  opinion  that  he  should 
make  application  to  be  re-admitted  under  Section  i  of  Article 
III,  and  that  he  should  be  proposed  and  voted  for  as  there  pro 
vided.  His  transfer  papers  should  be  forwarded  with  the  appli 
cation,  and  will  be  conclusive  evidence  of  the  facts  it  recites. 


OPINION  XL.     SEPTEMBER   16,  1872. 

1.  New  Charter  should  have  been  granted  when  districts  were  abolished. 

2.  The  new  Charter  should  contain  only  the  names  borne  on  the  old  one. 

A  Post  was  chartered  under  the  district  system  as  No.  5, 

District  No.   2,  Department  of .      On  the  abolition 

of  districts  the  Post  received  the  number  17,  and  now  de 
sires  to  have  the  Charter  changed  to  conform  to  this  num 
bering.  Can  this  be  done?  and  if  so,  should  the  names  of 
those  not  now  members  be  omitted?  And  what  should  be 
the  date  of  the  Charter? 

1.  It  was  a  mistake  on  the  part  of  the  Department  officers 
not  to  number  the  Post  17  originally,  as  all  the  Posts  in  the  De 
partment  should  have  been  numbered  continuously  from  the  one 
first  constituted,  not  beginning  at  number  i  in  each  district. 

2.  A  new  Charter  should  have  been  granted  when  districts 
were  abolished,  or  as  soon  as  the  mistake  was  discovered,  and 
there  is  no  impediment  to  making  the  correction  now.     The  new 
Charter  should  contain  the  same  names  as  the  original  one,  and 
should  either  be  dated  back  to  conform  to  the  date  of  the  form 
ation  of  the  Post,  or  should  refer  to  the  fact  that  it  is  given  as  a 
substitute  for  one  of  that  date,  and  to  correct  a  mistake  therein. 

Perhaps  it  may  be  better,  since  so  long  a  time  has  elapsed,  for 
the  Post  to  retain  their  original  Charter. 


56  OPINIONS   OF   JUDGE   ADVOCATES-GENERAL 


OPINION  XLI.     DECEMBER  7,  1872. 

Public  entertainment  can  not  be  opened  or  closed  according  to  the  Ritual — Ritual  to  be  kept 
secret. 

Can  a  public  entertainment  given  by  a  Post  be  opened 
and  closed  according  to  the  Ritual? 

Chapter  V,  Article  XIII,  Section  i,*  provides  that  the  Ritual 
of  the  Grand  Army  shall  be  kept  secret.  The  request  to  divulge 
a  portion  of  the  work  can  not  be  granted  without  violating  this 
law. 


OPINION  XLII.     DECEMBER  19,  1872. 

Comrades  dropped  for  non-payment  of  dues,  if  the  Post  to  which  they  belonged  disbands,  may 
be  admitted  to  another  Post  on  payment  to  the  Department  Commander  the  amount  of 
their  indebtedness. 

Certain  Comrades  were  dropped  from  the  roll  of  their 
Post  for  non-payment  of  dues.  They  now  desire  to  re- 
enter  the  Grand  Army,  but,  meanwhile,  the  Post  to  which 
they  formerly  belonged  has  been  disbanded.  How  can 
they  be  restored  to  membership  in  the  Order? 

So  long  as  the  Post  was^[in  existence  from  which  these  per 
sons  were  dropped,  as  stated  in  Opinion  I  (Opinion  XXXV 
herein)  of  May  25,  1872,  from  this  office,  they  could  only  re 
join  the  Order  by  being  voted  into  that  Post,  and  paying  the 
dues  which  were  in  arrears  at  the  time  they  were  dropped. 
Chapter  V,  Article  IV,  Section  4.  This  is  now  manifestly  im 
possible,  and  the  state  of  facts  is  one  not  contemplated  in 
that  opinion.  Do  the  Regulations  preclude  these  persons 
from  ever  rejoining  the  Order?  I  think  a  fair  construction  of 
the  Section  will  lead  to  the  conclusion  that  it  is  intended  to  ap 
ply  only  when  the  Post  still  exists.  If  its  prohibition  is  univer 
sal,  then  its  object,  which  is  generally  to  provide  an  equitable 


*See  Opinion  XXX. 


OF   THE    GRAND    ARMY   OF   THE    REPUBLIC,  57 


mode  of  restoring  Comrades  who  have  been  dropped,  must  fail 
in  such  cases  as  the  present,  through  the  dissolution  of  the  means 
by  which  that  restoration  is  to  be  effected.  I  think  the  Section 
was  designed  to  be  operative  only  when  it  could  operate,  viz. : 
so  long  as  the  means  it  provides  are  effective  and  attainable.  It 
does  not  intend  to  cut  off  a  person  who  has  been  dropped  from 
rejoining  the  Order,  but  to  facilitate  his  restoration.  If  we  can 
so  construe  this  Section  that  its  main  object  and  spirit  shall  be 
fulfilled  in  this  contingency  where  the  means  it  provides  fail,  we 
shall,  I  think,  be  observing  it  most  faithfully,  and  shall  be  ad 
hering  most  closely  to  its  true  intent.  After  the  dissolution  of  a 
Post,  where  can  this  power  of  re-admitting  Comrades  to  the  Or 
der  be  most  reasonably  supposed  to  reside?  I  think  in  the  De 
partment  which  becomes  the  successor  of  a  Post  when  it  is  dis 
solved,  and  which  inherits  its  property  and  records.  Let  the 
applicants  for  re-admission,  then,  fulfill  the  requirements  which 
this  Section  makes  of  them  by  paying  into  the  Department  treas 
ury  the  amounts  they  owed  their  Post ;  and  the  Department 
Commander,  in  his  discretion,  may  re-admit  them  to  the  Order 
and  organize  them  into  a  new  Post,  or  approve  their  application 
to  join  other  Posts. 

By  this  procedure,  the  candidates  will  have  done  all  that  the 
Regulations  require  of  them  ;  and  the  proper  officer  will  have 
performed  the  duty  of  discrimination  which  belonged  to  the 
Post  while  it  existed. 

NOTE— See  Opinions  XXXV,  CVIII,  CXV,  CXVI.    See,  also,  Section  4,  Article  IV,  Chapter 
V,  at  close  of  Opinion  XXVI. 


OPINION  XLIII.     JANUARY  7,  1873. 

Obligation  can  not  be  read  to  recruits  before  it  is  administered. 

Can   the   obligation   be   read    to   recruits,   consecutively, 
before  being  administered? 

The  resolution  of  the  National  Encampment,  passed  at  the  ses 
sion  of  1871,  at  Boston,  adopting  the  present  Ritual,  prescribes 


58  OPINIONS    OK  JUDGE   ADVOCATES-GENERAL 


that  after  the  receipt  thereof,  it  shall  be  strictly  conformed  to  in 
all  respects,  in  the  ceremonies  of  opening,  closing  and  muster-in. 
No  officer  of  the  Grand  Army  has  power  to  limit  or  alter  this 
limit  or  alter  this  enactment. 


OPINION  XLIV.     JANUARY   14,  1873. 

Post  can  not  surrender  Charter  contingently. — Charter  may  be   forfeited   for  neglect  to  hold 
monthly  meetings. 

A  Post,  having  paid  all  dues  and  forwarded  all  returns, 
votes  to  disband  for  one  year,  and  forwards  a  copy  of  the 
vote  to  Department  Headquarters.  What  is  the  duty  of 
the  Department  Commander  in  the  premises? 

He  should  inform  the  Post  that  the  Rules  and  Regulations  do 
not  permit  the  surrender  of  a  Post  Charter,  contingently,  or  for 
a  limited  time ;  and  when  a  Post  Charter  is  surrendered,  the 
provisions  of  Chapter  II,  Article  I,  Section  2,*  must  be  com 
plied  with  to  render  such  surrender  valid.  Should  it  appear 
doubtful,  however,  whether  the  Post  ought  to  be  continued,  he 
may,  if  he  thinks  proper,  call  a  meeting  of  the  Department 
Council  of  Administration,  and  they  may  declare  the  Charter  of 
the  Post  forfeited  for  neglect  to  hold  monthly  meetings.  The 
first  course,  I  think,  will  be  preferable,  as  the  Post  seems  to 
desire  to  dissolve  legally. 


*  SECTION  2,  ARTICLE  I,  CHAPTER  II. 

SECTION  2.  No  Charter  shall  be  surrendered  by  any  Post  so  long  as  ten 
members  thereof  demand  its  continuance ;  nor  unless  a  proposition  to  sur 
render  the  Charter  shall  have  been  made  at  a  stated  meeting  at  least  four 
weeks  before  the  time  of  action,  and  due  notice  given  to  every  member  of 
the  Post.  (See  Section  4,  Article  IV) . 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.     59 


OPINION  XLV.     FEBRUARY  26,  1873. 

Application  for  discharge  is  asked. — The  Post  must  grant  discharge  if  the  Comrade  is  in  good 
standing. 

Does  Section  3,  Chapter  II,  Article  IV,*  of  the  Rules 
and  Regulations  make  it  compulsory  for  a  Post  to  grant  a 
discharge? 

Is  it  necessary  that  the  discharge  be  granted  at  once,  or 
can  it  be  delayed  to  afford  opportunity  for  drawing  up 
charges  aginst  the  applicant? 

I  think  the  intent  of  the  Section  is  clear.  A  person  who  is 
"in  good  standing"  is  one  who  has  committed  no  offense  for 
which  charges  may  be  preferred.  When  the  application  is  re 
ceived,  the  Section  referred  to  reqires  that  it  shall  be  continued 
to  a  subsequent  meeting,  for  no  other  purpose  than  to  ascertain 
the  standing  of  the  applicant,  and  to  give  opportunity  to  Com 
rades  to  prefer  charges  against  him,  if  he  has  committed  any 
offense  against  the  Order.  The  discharge  may  be  delayed  long 
enough  to  give  time  for  the  preparation  of  charges,  but  not 
vexatiously,  or  without  probable  cause,  or  for  an  unreasonable 
time. 

If,  after  reasonable  delay,  no  charges  are  preferred,  it  is  com 
pulsory  upon  the  Post  to  grant  the  discharge. 


OPINION  XLVI.     MARCH  24,  1873. 

A  Post  Commander  who  is  a  member  of  the  Department  Council  of  Administration,  accused  of 
an  offense,  tried  by  Court  convened  by  Department  Commander. 

Is  it  proper  to  suspend  a  Post  Commander,  who  is  also 
a  member  of  the  Department  Council  of  Administration, 

*  Section  3,  Article  IV,  Chapter  II,  at  close  of  Opinion  III. 


60  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


when  accused    by  members  of    the  Post  of  appropriating 
Post  funds  to  his  own  use? 

The  Department  Commander  should  direct  charges  to  be  pre 
ferred  if  he  is  satisfied  that  there  is  any  foundation  for  the  accu- 
safions;*  and  should  then  suspend  the  accused  until  the  finding 
of  the  Court.  The  charges  in  this  case  should  be  tried  by  a 
Court  convened  by  order  of  the  Department  Commander. 


OPINION  XLVII.     APRIL,  11,  1873. 

M  embership  Eligibility — Officers  of  revenue  service  not  eligible  to  membership. 

Is  an  officer  in  the  revenue  service,  who  served  during 
the  war  in  that  capacity,  and  part  of  the  time  on  his  vessel, 
in  conjunction  with  vessels  of  the  navy,  in  suppressing 
blockade-running,  eligible  to  membership  in  the  Grand 
Army  of  the  Republic? 

The  Regulations  admit  only  those  who  served  in  the  army, 
navy,  or  marine  corps  during  the  war.  I  do  not  think  that 
either  of  these  classes  can  be  construed  to  include  the  revenue 


*SECTIONS  3  AND  8,  ARTICLE  VI,  CHAPTER  V. 

SECTION  3.  All  accusations  shall  be  made  in  the  form  of  charges  and 
•specifications,  and  shall  be  tried  by  Courts  Martial.  Courts  Martial  may  be 
-ordered  by  Commanders  of  Posts  or  of  Departments,  or  by  the  Commander- 
in-Chief,  for  the  trials  of  alleged  offenders  in  their  respective  jurisdictions. 
Members  of  Department  Encampments  and  Officers  of  Department  Staffs 
•shall  only  be  tried  by  Courts  convened  by  order  of  the  Department  Com 
mander,  or  higher  authority.  Members  of  the  National  Encampment  and 
'officers  of  the  National  Staff  shall  only  be  tried  by  Courts  convened  by 
order  of  the  Commander-in-Chief. 

SECTION  8.  When  charges  are  preferred  against  any  Comrade  holding 
office,  the  Department,  or  Commander-in-Chief,  in  their  respective  jurisdic 
tions,  may  suspend  the  accused  from  office.  During  the  suspension  of  a  Post 
Commander  or  Department  Commander,  the  office  shall  be  filled  by  the 
Senior  Vice  Commander. 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.     61 


service.  The  latter  is  a  part  of  the  Treasury  Department,  and 
its  officers  are  merely  the  armed  officers  of  customs.  The  regu 
lations  for  the  collection  of  revenue  and  the  prevention  of  smug 
gling,  etc.,  are  enforced  by  them  on  the  seas  exactly  as  they  are 
by  custom-house  officers  and  United  States  Marshals  on  shore. 
The  fact  that  a  revenue  vessel  is  detailed  for  extraordinary  duty 
during  a  time  of  urgent  necessity,  does  not  alter  the  relation  of 
its  officers  to  the  Government  or  attach  them  to  the  navy. 

NOTE— See,  also,  Opinion  XCVII. 


OPINION  XLVIII.     APRIL  17,  1873. 

Memorial  Day — Observance  of  Memorial  Day  is  obligatory. 

Private  circumstances  may  excuse  a  Comrade  from  the  observance,  but  a  Post  that  fails  or 

refuses  should  be  subjected  to  discipline. 

Where  a  Post  fails  to  observe  the  day  it  is  not  obligatory  on  a  member  of  the  Post. 
The  manner  or  form  of  the  observance  left  to  the  Posts. 
Neither  the  Commander-in-Chief  nor  the  Department  Commander  have  any  authority  to 

prescribe  a  plan  for  the  observance  of  Memorial  Day. 

Is  it  the  duty  of  Posts  or  Comrades  to  observe  Memorial 
Day  without  any  other  authorization  or  direction  than  that 
obtained  in  the  Rules  and  Regulations,  Chapter  V,  Article 
XIV?* 

Is  it  discretionary  with  Posts  and  Comrades  whether  they 
shall  observe  Memorial  Day? 

Would  the  failure  of  a  Post  to  make  arrangements  for 
the  observance  of  Memorial  Day,  as  a  Post,  relieve  any 
member  of  that  Post  from  the  duty  of  its  observance? 


*  ARTICLE  XIV,  CHAPTER  V. 

MEMORIAL    DAY. 

The  National  Encampment  hereby  establishes  a  Memorial  Day,  to  be 
observed  by  the  members  of  the  Grand  Army  of  the  Republic,  on  the  thir 
tieth  day  of  May,  annually,  in  commemoration  of  the  deeds  of  our  fallen 
Comrades.  When  such  day  occurs  on  Sunday,  the  succeeding  day  shall  be 
observed,  except  where,  by  legal  enactment,  the  preceding  day  is  made  a 
legal  holiday,  when  such  day  shall  be  observed. 


62  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


Do  the  Rules  and  Regulations  leave  the  method  of  the 
observance  of  Memorial  Day,  and  the  arrangements  there 
for,  to  the  discretion  of  Posts  and  Comrades? 

Has  the  Commander-in-Chief  or  a  Department  Com 
mander  authority  to  prescribe  any  plan  of  action  by  Posts 
in  the  arrangements  for  the  observance  of  Memorial  Day, 
or  to  interfere  with  the  arrangement  of  any  Post  or  Com 
rade  for  its  observance,  either  as  a  Post  by  itself  or  in  con 
junction  with  other  Posts,  or  as  Comrades  individually? 

1.  I  answer  the  first  question  in  general  terms  in  the  affirm 
ative.     I  consider  that  the  Rules  and  Regulations  enjoin  upon 
every  Post  and  Comrade  the  duty  of  observing  Memorial  Day, 
and  that  this  provision  creates  the  duty,  whether  any  orders  are 
issued  by  Department  or  National  authority  or  not. 

2.  The  nature  of  the  duty  makes  each  Comrade  necessarily 
the  judge  of  how  he  shall  perform  it.     It  is  analogous  to  the 
obligation  which   he   assumes   to  relieve  the  wants  of  a  needy 
Comrade  or  his  duty  to  attend  the  meetings  of  his  Post.     Each 
of  these  duties  will  be  acknowledged  by  a  Comrade  who  feels  his 
responsibility  as  a  member  of  the  Order.     Yet,  from  the  nature 
of  the  case,  no  Post  can  say  what  private  circumstances  are  suffi 
cient  to  excuse  a  member  from  giving  charity  in  any  particular 
instance,  nor  whether  he  properly  waives  the  obligations  to  at 
tend  a  meeting  in  favor  of  another  duty  which  seems  to  him  to 
claim  the  preference.     In  all  these  matters  the  Grand  Army  must 
leave  the  conduct  of  each  Comrade  to  his  own  sense  of  right. 

In  the  case  of  a  Post  I  think  somewhat  less  discretion  is  allow 
able.  Posts  are  organized,  among  other  things,  for  just  this  pur 
pose.  The  perpetuation  of  the  memory  of  our  fallen  Comrades, 
not  only  among  ourselves,  but  in  the  grateful  regard  of  the  whole 
people,  whose  life  they  saved,  by  our  annual  processions  to  the 
resting-places  of  the  heroic  dead  and  the  floral  decorations  of 
their  urns,  is  one  of  the  most  prominent  and  beautiful  objects  of 
our  Order,  none  the  less  important  that  it  was  not  inaugurated 
till  after  the  Grand  Army  had  been  some  time  in  existence.  I 
think,  therefore,  that  a  Post  which  should  omit  this  ceremonial 
repeatedly,  or  for  a  frivolous  cause,  or  which  should  deliberately 


OF   THE   GRAND    ARMY   OF   THE    REPUBLIC.  63 


pass  resolutions  of  contempt  for  the  observance  of  it — if  such  a 
thing  can  be  imagined — would  be  amenable  to  discipline  by 
higher  authority  as  properly  as  if  it  should  fail  for  a  long  period 
to  hold  meetings,  or  in  its  capacity  as  a  Post  should  commit  any 
other  act  of  insubordination. 

3.  If  the  Post,  to  which  any  Comrade  belongs,  were  to  fail 
to  make  arrangements  for  the  observance  of  the  day,  I  think  it 
would  not  be  obligatory  upon  such  Comrade  to  engage  in  any 
public  ceremonies  in  its  observance.     Yet,  if  inclination  prompts 
him  to  join  with  some  other  Post,  or  to  assemble  with  other  Com 
rades,  or  alone  to  visit  and  decorate  the  graves  of  the  fallen,  such 
voluntary  service  will  be  a  becoming  expression  of  the  sentiments 
which  the  Grand  Army  inculcates  and  fosters. 

4.  The  Rules  and  Regulations  prescribe  the  observance  of 
the  day  by  the  members  of  the  Order.     The  primary  organization 
of  the  members  is  by  Posts,  and  consequently,  in  the  absence  of 
specific  orders  or  regulations,  the  duty  first  devolves  upon  each 
Post.     It  is  generally  the  case  throughout  the  country,  that  there 
is  only  one  Post  in  each  town  or  village  ;  and,  therefore,  the  day 
has  been   usually   observed   by  each   Post  in  its  own  way.      In 
cities,  where  there  are  more  Posts  than  one,  and  where  there  are, 
perhaps,  different  cemeteries  to  be  visited,  it  has  been  the  cus 
tom,  and  an  entirely  proper  one,  for  several  Posts  to  unite  vol 
untarily  in  this  service. 

5.  The  ordinary  duties  of  a  Department  Commander  relate 
to  his  Department  as  a  whole.     On   occasions   when   the  whole 
Department  is  ordered  out,  or  assembles  for  any  duty,  he  takes 
command.     When  a  Post  is  assembled  by  itself,  or  when  several 
Posts  unite  voluntarily,  for  the  purpose  of  a  parade,  a  reception, 
or  a  fair,  or  any  such  object,  the  Department  Commander  would 
hardly  assume  the  direction  of  affairs.     If  one  Post,  or  any  num 
ber  of  Posts,  were  to  assemble  or  combine  for  an  illegal  object, 
or  one  detrimental  to  the  interests  of  the  Order,  the  Department 
Commander  would  have  the  right,  and  it  would  be  his  duty,  to 
interfere  and  stop  such  proceedings. 

Clearly,  whatever  right  a  Department  Commander  has  in  his 
own  Department,  the  Commander-in-Chief  has  throughout  the 
Order;  and,  if  the  Department  Commander  interferes  in  matters 


64  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


relating  to  a  Post  in  his  jurisdiction,  the  Commander-in-Chief 
may,  in  his  discretion,  approve  or  revoke  the  order  of  the  De 
partment  Commander. 

I  may  add,  in  application  of  the  foregoing  principles  to  the 
facts  which  suggested  the  questions  submitted,  that  no  Depart 
ment  Encampment,  or  Department  Commander,  has  the  power 
to  order  various  Posts  to  send  delegates  to  a  committee,  which 
shall  control  their  action  as  Posts  upon  any  public  occasion,  be 
cause — 

First — Such  action  is  in  effect  forming  a  new  organization,  un 
known  to  our  Rules  and  Regulations,  and  giving  it  a  command 
which  belongs  to  the  senior  officer  present. 

Second — Such  action,  where  pecuniary  expense  is  to  be  incurred 
under  direction  of  such  committee,  is  giving  to  an  unauthorized 
body  the  power  to  levy  a  special  tax  upon  the  Posts  concerned. 

Of  course,  any  number  of  Posts,  conveniently  located  for  the 
purpose,  may  voluntarily  combine  for  any  lawful  object,  and  may 
act,  through  a  committee  of  their  own  choice,  as  they  see  fit,  in 
securing  their  object,  and  in  collecting  the  means  for  defraying 
the  expense  incurred. 


OPINION  XLIX.     APRIL  23,  1873. 

1.  Reports — It  is  the  duty  of  Adjutant-General  or  Assistant  Adjutant-General  to  notify  Depart 

ments  or  Posts  of  the  failure  to  receive  reports. 

2.  If  reports  were  forwarded,  and  they  miscarried,  sender  should  forward  copy. 

3.  Where  report  has  been  sent  but  not  received,  delegates  may  be  admitted. 

The  Rules  and  Regulations  provide  that  returns  and 
reports  shall  be  forwarded  to  the  Assistant  Adjutant- 
General,  or  the  Adjutant-General,  as  the  case  may  be; 
what  is  evidence  before  an  Encampment  that  this  is  com 
plied  with?  Is  it  sufficient  evidence  for  representation, 
that  they  were  mailed  and  addressed  to  the  proper  receiv 
ing  officer,  or  must  the  said  officer  testify  to  their  receipt ; 
or,  if  he  certifies  they  were  not  received,  does  the  testi 
mony  of  any  subordinate  officer,  proper  to  make  returns, 


OF    THE    GRAND    ARMY    OF    THE    REPUBLIC.  65 


that  they  were  made  out,  signed,  addressed  and  mailed  to 
the  proper  person,  entitle  them  to  delegates;  and  is  it  a 
complete  compliance  with  Articles  of  Rules  and  Regula 
tions? 

i.  It  is  difficult  to  lay  down  an  exact  rule  for  all  cases.  If  a 
report  should  not  be  received  at  Headquarters,  soon  after  it  was 
due,  it  would  be  the  duty  of  the  Adjutant-General,  or  Assistant 
Adjutant-General,  to  notify  the  delinquent  Department  or  Post 
that  such  a  report  had  not  been  received ;  and  a  Post  or  Depart 
ment  Commander,  who  had  made  out  and  mailed  a  report, 
would  have  a  right  to  suppose  that  it  had  been  received,  unless 
he  should  get  such  a  notification.  If  a  report  miscarried,  and 
the  sender  was  notified,  he  should  forward  another  copy. 

At  a  meeting  of  an  Encampment,  the  first  evidence  which 
would  be  presented  to  it,  in  regard  to  the  reception  of  reports, 
would  be  the  statement  of  the  Adjutant-General,  or  Assistant 
Adjutant-General.  This,  if  not  contradicted,  would  be  conclu 
sive.  But,  if  the  statement  should  then  be  made  that  the  report 
was  actually  sent  and  no  notice  had  issued  from  Headquarters 
of  its  non-reception,  I  think  that  the  Encampment  would  con 
sider  that  the  reporting  officer  had  done  all  that  was  required  of 
him,  with  the  information  he  possessed,  and  the  delegates  would 
be  admitted  to  the  Encampment,  it  being  understood,  of  course, 
that  a  new  copy  of  the  missing  report  should  be  forwarded  as 
soon  as  possible.  All  our  reports  are  made  due,  by  Regulations, 
sufficiently  long  before  the  meetings  of  Encampments  to  give 
time  to  send  for  new  copies,  if  they  are  not  forwarded  when 
due.  And  to  entitle  a  Post  or  Department  to  representation, 
reports  may  be  forwarded  at  the  last  moment  before  the  En 
campment  meeting,  even,  or  sent  in  by  the  hands  of  the  dele 
gates. 

NOTE— See  Opinions  LXXXII  and  LXXXIII,  as  to  representation. 


66  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


OPINION  L.     APRIL  25,  1873. 

Eligibility  to  Member.-hip — Clerk  to  an  army  Paymaster  not  eligible  to  membership. 

Opinion  VI,  rendered  September  7,  1871,  from  this  office,  is 
not  intended  to  apply  to  the  case  of  a  clerk  of  an  army  Pay 
master.  I  do  not  think  that  such  service  renders  a  person  eligi 
ble  to  membership  in  the  Grand  Army.  None  of  the  reasons 
assigned  for  Opinion  VI  apply  to  his  case.  He  is  universally 
considered  a  civilian.  He  wears  no  uniform,  is  not  mustered 
into  the  service,  has  no  command,  and  is  never  ordered  into 
action  ;  is  liable  to  be  discharged  at  any  time,  or  can  leave  with 
out  becoming  a  deserter.  He  is  in  a  similar  position  to  that 
occupied  by  a  clerk  in  the  Quartermaster's  department,  the 
Ordnance  Bureau,  or  any  Government  office.  In  a  vessel  of 
the  navy  every  person  on  board  must  participate  in  an  engage 
ment,  and  consequently  every  one  is  assigned  some  post  in 
action.  A  large  number  of  persons  connected  with  the  army, 
more  or  less  remotely,  are  required,  by  their  duties  in  relation 
to  property  in  their  charge,  to  keep  out  of  action.  If  the  word 
"  soldier"  in  Article  IV,  Section  i,  Chapter  I,  of  the  Rules  and 
Regulations,  has  any  significance,  it  seems  to  me  to  exclude  this 
class  of  persons.* 


OPINION  LI.     APRIL  28,  1873. 

Department  Encampment — No  member  or  delegate  elected  subsequent  to  the  last  stated  meet 
ing  in  the  year  eligible  to  a  seat.f 

Can  a  member,  or  alternate,  elected  by  a  Post  subse 
quent  to  the  last  stated    meeting  in  the    year,  be  legally 


*  See  Article  IV,  Chapter  I,  at  close  of  Opinion  IV. 

fBy  amendment  to  Section  3,  Article  II,  Chapter  III,  National  Encamp 
ment,  May,  1873,  vacancies  in  Department  Encampment  may  be  filled.  See 
close  of  Opinion  XVIII. 

SECTION  3,  ARTICLE  VII,  CHAPTER  II. 

SECTION  3.  Posts  may  fill  any  vacancy  in  their  offices  at  any  stated 
meeting,  notice  of  such  contemplated  action  having  been  given  at  a  previous 
meeting. 


OF   THE   GRAND    ARMY    OF 'THE    REPUBLIC.  67 


admitted  to  a  seat  in  the  Department  Encampment  as  a 
representative  of  such  Post,  under  existing  Rules  and  Reg 
ulations? 

Before  the  passage  of  the  present  Rules  and  Regulations  it  was 
the  practice,  when  representatives  or  delegates  from  any  Depart 
ment  were  unable  to  attend  the  meeting  of  the  National  Encamp 
ment,  to  elect  or  detail  Comrades  from  that  Department  to  take 
their  places.  There  were  also  instances  in  some  Departments 
of  Posts  being  formed  after  the  beginning  of  the  year,  and  elect 
ing  Delegates  to  the  Department  Encampment.  In  some  Depart 
ments  they  were  admitted,  and  in  others  rejected.  On  the  adop 
tion  of  the  present  Rules  and  Regulations,  a  uniform  rule  was 
established  in  both  the  representation  of  Posts  and  Departments. 
Chapter  III,  Article  II,  Paragraph  3,  and  Chapter  IV,  Article 
II,  Section  2,  in  substantially  the  same  language,  provides  that 
only  the  representatives,  or  alternates,  chosen  at  the  time  and  in 
the  manner  specified,  shall  be  admitted  to  seats.  The  chance 
that  vacancies  may  occur  among  the  representatives  is  the  only 
reason  for  allowing  alternates  to  be  elected.  If  vacancies  could 
be  filled  when  they  occur,  it  would  be  entirely  unnecessary  to  fill 
them  thus  in  advance.  I  therefore  answer  in  the  negative. 


OPINION  LII.     JANUARY  6,  1873. 

t.     Court  Martial  -  Accused  entitled  to  copy  of  charges  and  specifications— When. 

2.  Proceedings  shall  be  in  accordance  with  United  States  Army  Regulations. 

3.  Request  for  trial  by  Department  Court  must  be  made  before  the  time  fixed  for  the  meeting 

of  the  Post  Court. 

4.  Wnere  the  evidence  is  not  furnished  the  record  is  incomplete,  and  a  new  trial  may  be  ordered 

by  Department  Commander,  or  reviewing  officer. 

5.  If  new  trial  is  ordered,  Department  Commander  may  order  trial  by  Department  Court. 

The  following  opinion  upon  the  record  of  a  Court  Martial, 
and  various  questions  raised  by  the  reviewing  officer  in  rela 
tion  thereto,  is  inserted  here,  as  some  .of  the  principles  dis 
cussed  may  find  application  in  other  cases : 


68  OPINIONS    OF    JUDGE    ADVOCATES-GENERAL 


HEADQUARTERS  GRAND  ARMY  OF  THE  REPUBLIC, 

JUDGE  ADVOCATE-GENERAL'S  OFFICE,  January  6,  1873. 

i.  The  statement  and  correspondence  submitted  show  that 
after  receiving  due  notice  of  the  time  and  place  appointed  for 
his  trial,  the  accused  willfully  neglected  to  present  himself  and 
plead  to  the  charges  and  specifications.  On  the  day  after  the 
time  appointed  by  the  Court  he  addressed  a  note  to  the  Post 
Commander,  by  whose  orders  it  had  convened,  requesting  a  copy 
of  the  charges  and  specifications.  These  were  not  furnished 
him,  but  he  was  subsequently  notified  of  the  time  and  place  to 
which  the  Court  had  adjourned.  At  the  second  meeting  he  did 
not  appear  until  a  late  hour,  when  the  Court  was  deliberating 
upon  their  sentence,  having  already  found  him  guilty.  Instead 
of  requesting  to  be  allowed  to  plead  or  to  have  further  time  given 
him  for  defence,  he  addressed  the  Court  in  an  abusive  manner, 
and  was  ordered,  in  consequence,  to  leave  the  room.  The  next 
day  he  addressed  a  communication  to  the  Department  Com 
mander,  requesting  a  trial  by  a  general  Court  Martial,  and  alleged 
that  the  proceedings  against  him  were  characterized  by  malice 
and  unfairness. 

2.  The  position  taken  by  the  Post  Commander  that  the  Rules 
and  Regulations  do  not  require  that  the  accused  should  be  fur 
nished  with  a  copy  of  the  charges  and  specifications,  is  perhaps 
correct  when  he  does  not  request  it ;  but  in  this  case  the  request 
was  made,  as  appears  from  the  correspondence,  before  any  ac 
tion  had  been  taken  by  the  Court  beyond  organizing  and  entering 
the  plea  of  not  guilty.  The  Regulations  prescribe  that  the  mode 
of  proceeding  of  Courts  Martial  shall  be  in  accordance  with  Uni 
ted  States  Army  Regulations  and  established  military  usage. 
Chapter  V,  Article  VI.  Section  4.*  This  provision  would  require 
that  the  request  of  the  accused  should  be  granted  ;  and  if  he  had 
appeared  at  the  adjournment  of  the  Court,  and  there  renewed 
his  request,  it  would  have  been  the  duty  of  the  Court  to  furnish 
the  copy  and  give  him  time  to  plead  and  prepare  his  defence. 
But  it  does  not  appear  that  he  ever  acknowledged  the  authority 
of  the  Court,  or  informed  them  that  he  desired  to  know  the 


Opinion  I. 


OF   THE   GRAND    ARMY   OF   THE    REPUBLIC.  69 


charges,  or  to  appear  and  defend  himself.  So  far  as  they  were 
concerned  their  conduct  in  the  premises  was  regular  and  legal. 
They  were  simply  to  inquire  whether  he  had  received  notice  as 
required  by  the  Regulations  ;  and  if  they  were  satisfied  that  such 
was  the  case,  they  were  to  proceed  as  if  he  had  been  present  and 
pleaded  not  guilty,  which  would  imply  that  he  knew  what  the 
charges  were.  It  appears  from  the  record  that  they  did  this. 

3.  The  appeal  to  the  Department  Commander,  and  the  re 
quest  for  trial  by  a  Department  Court  Martial,  was  not  intended 
to  be  made  after  trial  by  a  Post  Court,  so  as  to  give  the  accused 
two   trials.     It  should   be   made  before  the   time  fixed  for  the 
meeting  of  the  Court,   or,  at  the  latest^  at  the  time  when  the 
Court  first  meets  before  the  opening  of  the  case.     If  the  defend 
ant,  by  his  willful  neglect,  permitted  the  Court  to  take  jurisdic 
tion,  he  must  be  considered  as  waiving  his  right  to  object  to  it. 
Nor  does  this  interpretation  of  the  Regulations  unjustly  affect  the 
accused ;  for  any  objection  which  he  might  make  to  the  Court 
in  respectful  language,  would  be  forwarded  with  the  copy  of  the 
case  for  the  review  of  the  proper  officer,  and  would  influence  his 
judgment  of  the  sentence. 

4.  The  record  of  the  Court  is  then  before  the  Department 
Commander  for  his  examination  and  approval  or  disapproval, 
and  orders  in  the  case. 

5.  His  first  duty  is  to  see  that  the  proceedings  appear  to  be 
regular,  and  then  to  decide  if  the  findings  are  supported  by  the 
evidence.     But  in  this  record  there  is  no  report  of  the  evidence. 
It  is  impossible,  therefore,  for  the  reviewing  officer  to  say  whether 
the  findings  are  warranted  by  the  testimony  or  not,  and  he  can 
not  say  whether  the  sentence  ought  to  be  executed  or  not.     This 
is  a  radical  defect  in  the  record.     If  the  evidence  can  be  supplied 
from  minutes  taken  at  the  time,  the  record  may  be  amended  by 
its  insertion,  and  signed  again  and  forwarded  for  the  reviewing 
officer's  examination ;  but  if  not,  and  it  does  not  appear  to  me 
to  be  possible,  then  the  sentence  can  not  be  carried  into  effect, 
and  a  new  trial  must  be  ordered.     It  is  for  the  Department  Com 
mander  to  say  whether,  if  a  new  trial  must  be  had,  it  will  not  be 
best,    under  the  circumstances,   to  order  a   Department  Court, 


70  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


composed  of  Comrades  who  have  not  already  formed  an  opinion 
upon  the  guilt  or  innocence  of  the  accused,  as  the  members  of 
his  Post  must  now  have  done. 


OPINION  LIII.     JULY  9,  1873. 

Eligibility  to  membership — Person  twice  rejected  by  the  same  Post  ineligible.* 

Does  the  last  clause  of  Section  5,  Chapter  II,  Article  II, 
of  the  Rules  and  Regulations  forbid  the  reception  of  an 
application  for  membership  from  a  person  who  has  been 
twice  rejected  by  the  same  Post  under  the  old  organization? 

It  is  my  opinion  that  it  does  forbid  the  reception  of  such  an 
application. 

The  question  proceeds  upon  an  erroneous  assumption.  It 
implies  that  there  have  been  different  organizations  succeeding 
each  other  under  the  common  name  of  the  Grand  Army  of  the 
Republic. 

The  Order,  in  fact,  has  been  one  continuous  body,  with  the 
same  objects,  and  with  substantially  the  same  plan  of  operations. 

The  only  important  changes  in  its  system  have  been  the  intro 
duction  and  abandonment  of  grades  of  membership,  and  it  will 

*  By  an  amendment  to  Chapter  II,  Article  II,  Sections  5  and  10,  National 
Encampment,  May,  1875,  the  restriction  forbidding  a  third  and  subsequent 
application  has  been  removed. 

SECTION  5.  If  an  applicant  be  rejected  his  admission  fee  shall  be  re 
turned,  and  he  shall  not  be  eligible  to  admission  to  the  Grand  Army  of  the 
Republic  until  six  months  after  such  rejection.  He  shall  not  be  eligible  to 
membership  in  any  other  Post  without  the  consent,  by  a  two-thirds  vote,  of 
the  Post  rejecting  him.  A  second,  and  all  subsequent  applications,  shall  be 
in  the  same  form  and  subject  to  the  same  conditions  as  the  first. 

SECTION  10.  The  applications  for  membership  of  persons  who  were  Com 
rades  before  the  introduction  of  the  grade  system,  but  who  never  took  the 
obligation  of  the  third  grade,  shall  be  received  and  acted  upon  the  same  as 
if  the  applicant  had  never  belonged  to  the  Grand  Army. 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.     71 


be  observed  that  this  system  was  embodied  in  one  Article  of  the 
Regulations,  Article  V,  Chapter  I,  editions  1869-70,  and  was 
eliminated  by  striking  out  that  Article  and  making  brief  verbal 
alterations  in  a  few  other  Sections.  By  that  Article  certain  mem 
bers  were  given  peculiar  powers,  and  new  recruits  were  placed 
for  a  time  on  probation.  In  May,  1871,  by  repeal  of  these  pro 
visions,  all  members  were  again  placed  upon  the  same  footing. 
Always,  however,  they  were  Comrades  of  the  same  Order,  band 
ed  together  for  the  support  of  the  same  principles.  A  person 
who  applied  for  admission  to  a  Post  of  the  Grand  Army  in  1867, 
desired  to  join  the  same  society  which  an  applicant  in  1873 
wishes  to  enter.  Any  particular  Post  of  the  Grand  Army  is  the 
same  body,  and  holds  substantially  the  same  relation  to  the  Order 
which  it  held  from  the  beginning. 

It  is  quite  within  the  power  of  any  voluntary  association  to 
say  who  shall  be  eligible  to  membership  in  its  ranks,  and  to 
change  its  requirements  at  will ;  and  a  person  who  applies  for 
admission  must  be  governed  by  the  law  as  he  finds  it  at  the  time 
of  his  application.  In  this  case  the  prohibition  has  the  same 
effect  as  if  it  had  been  inserted  in  the  Section  which  prescribes 
the  classes  of  persons  who  may  or  who  may  not  be  admitted. 

The  clause  in  question  first  appears  in  the  revision  of  the  Reg 
ulations  adopted  at  Cincinnati,  May,  1869,  at  the  same  time  that 
the  system  of  grades  was  adopted.  Previous  to  that  time  an 
applicant  might  present  himself  indefinitely  at  intervals  of  six 
months.  At  the  same  session  the  clause  was  adopted  making 
ineligible  those  who  at  any  time  had  borne  arms  against  the 
United  States.  Until  then  a  reconstructed  Rebel,  for  anything  in 
the  Regulations,  might  have  been  proposed  and  admitted  to 
membership ;  but,  as  it  seems  to  me,  both  the  clauses  adopted 
at  Cincinnati  have  the  similar  effect  of  preventing  the  reception 
of  either  class  of  applicants  after  that  time. 


72  OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


OPINION  LIV.     JULY   19,  1873. 

Eligibility  to  Membership— One  who  deserts  from  his  company  or  regiment  and  joins  another, 
and  from  the  latter  organization  receives  an  honorable  discharge,  is  not  eligible  to  mem 
bership. 

A.  B.  enlisted  in  the  Union  army  during  the  Rebellion. 
Because  of  the  persecution  of  his  commanding  officer  he 
deserted  his  company,  came  North,  and  again  enlisted  in 
the  Union  army  as  A.  C.  He  now  makes  application  in 
his  own  name,  A.  B.,  for  membership  in  our  Order.  Can 
we  muster  him?  It  is  argued  that  he  is  admissible,  as 
President  Lincoln's  proclamation  pardoned  all  deserters, 
and  men  of  the  Post  who  served  with  A.  B.  justify  his  de 
sertion,  and  vouch  for  his  subsequent  honorable  service 
under  the  assumed  name. 

I  may  say  in  the  beginning,  that  as  I  understand  the  law  which 
I  am  called  on  to  interpret,  no  oppression  will  justify  a  soldier's 
leaving  the  service  he  has  sworn  to  perform  and  take  a  new  en 
listment,  with  probably  a  larger  bounty,  at  his  will.  I  apprehend 
that  the  cases  are  very  few,  where,  on  application  to  the  proper 
authorities,  a  man's  wrongs  would  not  be  redressed  or  he  be 
allowed  a  transfer  into  the  company  of  another  commander. 
And  by  orders  from  the  War  Department  it  was  made  the  priv 
ilege  of  any  enlisted  man  to  take  a  transfer  to  the  navy,  whether 
his  commanding  officer  approved  or  not. 

Our  Rules  and  Regulations  of  1868  expressly  provided  that 
"  No  soldier  or  sailor  who  has  been  convicted  by  Court  Martial 
of  desertion  or  any  other  infamous  crime  shall  be  admitted." 
When  the  revision  of  the  Regulations  was  made,  in  1869,  it  was 
considered  that  many  soldiers  were  convicted  of  technical  de 
sertion  who  had  never  had  any  intention  of  actually  leaving  their 
colors,  and  it  was  not  thought  best  in  the  General  Regulations  to 
go  behind  an  honorable  discharge,  except  where  the  soldier  had 
been  in  the  Rebel  service ;  so  this  clause  was  omitted. 

This  action  practically  left  the  case  of  all  such  persons  who 
should  apply  for  membership,  to  the  decision  of  the  ballot,  and 


OF    THE    GRAND    ARMY    OF    THE    REPUBLIC.  73 


allowed  them  to  be  mustered  if  they  could  win  the  suffrages  of 
the  prescribed  majority  of  the  Post.  It  must  be  remembered 
that  not  all  persons  who  are  permitted  to  become  candidates 
ought  to  be  received.  Every  Comrade  in  voting  should  express 
his  opinion  of  the  fitness  of  the  applicant,  and  one  who  has  been 
a  deserter,  though  afterwards  pardoned,  or  never  apprehended 
or  tried,  would  usually  be  coldly  received  by  men  who  performed 
faithfully  the  difficult  and  dangerous  duties  as  well  as  the  easier 
ones  the  service  imposed. 

The  case  of  A.  B.'s  eligibility,  then,  must  be  decided  by  the 
answer  to  the  question  whether  he  can  present  an  honorable  dis 
charge.  If  he  can  he  may  apply  for  admission.  I  do  not  go  so 
far,  in  answering  this  question,  as  to  say  that  the  fact  that  his  hon 
orable  service  and  discharge  were  under  an  assumed  name  would 
render  him  ineligible.  But  when  a  discharge  is  presented  that 
bears  prima  facie  marks  of  fraud,  we  are  warranted  in  inquiring 
how  he  obtained  it,  and  what  was  his  motive  in  concealing  his 
true  name.  If  we  find,  as  in  this  case,  that  the  name  was  as 
sumed  to  shield  him  from  the  punishment  of  a  crime,  which,  if 
known,  would  have  prevented  him  from  receiving  the  discharge, 
it  would  be  a  misuse  of  language  to  call  a  discharge  so  obtained 
an  honorable  one. 

The  proclamation  of  the  President  has  nothing  to  do  with  the 
case.  A  pardon  does  not  annul  the  crime  ;  it  only  waives  the 
punishment.  I  think  that  A.  B.  is  not  eligible. 

NOTE— See  Opinion  LXIX. 


OPINION  LV.     SEPTEMBER  29,  1873. 

Per  Capita  Tax — Supplemental  reports  should  be  made  showing  whrit  number  have  been  rein 
stated,  and  the  quarters  for  which  dues  have  been  paid  to  the  Post. 

A  number  of  Posts  have  been  in  the  habit  of  suspending 
a  large  number  of  Comrades  on  the  quarters  ending  March 
3  i ,  June  30  and  September  30,  and  reinstating  them  on  the 
quarter  ending  December  3  i .  Should  not  the  respective 


74  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


Posts  pay  the  per  capita  tax  to  the  Department  for  each 
quarter  the  Comrade  was  in  arrears  at  the  time  he  was  re 
instated  and  placed  in  good  standing? 

If  a  Comrade  in  arrears  is  reinstated  and  placed  in  good 
standing,  is  not  that  sufficient  evidence  that  he  has  paid  all 
arrears,  the  number  shown  in  good  standing  upon  the  face 
of  an  Adjutant's  roll,  either  by  muster,  transfer,  or  rein 
stated,  being  the  basis  of  representation? 

On  principles  of  general  equity  a  Post  should  pay  Department 
dues  for  any  quarter  on  the  number  of  members  who  pay  Post 
dues  for  that  quarter,  whether  the  Comrades  pay  their  Post  .dues 
at  the  proper  time  or  afterwards.  If  the  payments  to  the  Posts 
are  made  at  any  time  after  the  quarterly  report  of  the  Post  has 
gone  forward,  a  supplemental  report  should  be  required,  or  the 
fact  of  the  additional  collections  should  appear  in  some  subse 
quent  report. 

The  Regulations  allow  a  Comrade's  dues  to  be  remitted  in 
certain  circumstances,  and  while  they  are  so  remitted  the  Com 
rade  is'not  counted  in  representation,  or  in  estimating  the  Depart 
ment  tax.  It  does  not  seem  to  me  that  the  Regulations  require 
such  remitted  dues  to  be  paid  before  the  Comrade  is  reinstated, 
as  upon  that  construction  the  remission  would  only  be  a  post 
ponement  of  the  time  of  payment,  and  this  would  be  a  small  favor 
to  a  needy  Comrade.  I  am  rather  of  the  opinion  that  the  Regu 
lations  permit  such  a  person  to  be  restored  to  the  list  of  Comrades 
in  good  standing,  when  he  recommences  to  pay  his  dues  regu 
larly,  so  that  if  his  dues  are  remitted  for  the  second  and  third 
quarters  of  the  year  and  he  pays  for  the  fourth,  he  may  be  re 
ported  in  good  standing  on  the  first  of  January  succeeding.  In 
some  exceptional  cases  this  may  give  a  Post  an  advantage  over 
others  in  its  representation  in  the  Department  Encampment,  but 
it  would  require  a  two-thirds  vote  of  the  Post  in  twenty-five  cases, 
on  the  average,  to  gain  one  representative,  and  this  result  is 
hardly  worthy  of  consideration. 

It  can  only  be  inferred,  therefore,  that  a  Comrade  who  is 
"reinstated"  from  kt  suspended"  has  begun  to  pay  his  dues 
regularly,  not  that  he  has  paid  all  that  were  in  arrears.  Yet  as 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC.  75 


he  may  have  been  reinstated  on  payment  of  arrearages,  a  report 
should  be  made  by  the  Post  at  some  convenient  time  in  the  year, 
say  at  the  time  the  report  for  the  fourth  quarter  is  forwarded, 
distinguishing  the  different  classes  who  have  been  reinstated 
during  the  year,  and  showing  tor  how  many  quarters  while  they 
were  reported  suspended,  such  Comrades  have  paid  back-dues. 
I  think  this  might  be  shown  by  a  proper  addition  to  the  regu 
lar  report,  including  the  same  information  in  regard  to  amounts 
received  from  Comrades  dropped,  as  well  as  suspended  and 
restored. 

NOTE.— See  Opinion  XXI. 


OPINION  LVI.     OCTOBER  29,  1873. 

Court  Martial — Where  the  Department  Commander  as  reviewing  officer  reverses  the  sentence 
of  dishonorable  discharge,  there  can  be  no  appeal  to  National  Headquarters. 

The  question  is  proposed  whether  a  Post  who  have 
ordered  a  trial  of  a  member  by  a  Post  Court  Martial,  upon 
the  conviction  of  the  accused  and  the  reversal  of  the  sen 
tence  of  dishonorable  discharge  by  the  Department  Com 
mander,  the  officer  next  superior  to  the  officer  ordering  the 
Court,  have  a  right  to  appeal  to  National  Headquarters 
from  the  order  of  the  reviewing  officer? 

Appeals  from  acts  of  Post  Commanders  are  given  by  Chapter 
III,  Article  VII,  of  the  Rules  and  Regulations.*  Such  appeals 
are,  I  think,  intended  for  the  protection  of  members  who  are 
aggrieved  by  the  acts  from  which  appeal  is  taken.  The  course 


*ARTICLE  VII,  CHAPTER  III. 

APPEALS. 

All  members  shall  have  the  right  of  appeal,  through  the  proper  channels, 
from  acts  of  the  Posts  or  Post  Commanders  and  Department  Commanders  or 
Encampments  to  the  next  highest  authority,  and  to  the  Cormiiander-in-Chief, 
whose  decisions  shall  be  final,  unless  reversed  by  the  National  Encampment ; 
but  all  decisions  appealed  from  shall  have  full  force  and  effect  until  reversed 
by  competent  authority. 


7(5  OPINIONS    OF    JUDGE   ADVOCATES-GENERAL 


of  appeal  is  from  the  decision  of  the  Post  Commander  to  the 
Post,  thence  to  the  Department  Commander,  thence  to  the  De 
partment  Encampment  or  Council  of  Administration,  if  either  is 
in  session,  and  afterwards,  or  if  they  are  not  in  session,  directly 
to  the  Commander-in-Chief,  and  from  him  to  the  National  En 
campment  or  Council  of  Administration. 

The  right  of  appeal  from  the  original  acts  of  a  Department 
Commander  or  Department  Encampment  is  nowhere  given  in 
express  terms  in  the  Regulations,  but  has  been  invariably  claimed 
and  allowed  as  a  consequence  of  the  relative  subordination  exist 
ing  between  the  various  officers  and  organizations  of  the  Order. 

A  right  thus  established  and  not  defined  by  positive  enact 
ment,  must  be  construed  with  reference  to  the  properties  of  the 
case,  the  nature  of  the  question,  and  the  regulations  indirectly 
bearing  upon  it. 

If  the  appeal  claimed  refers  to  a  subject  which  is  considered 
in  the  Regulations,  what  they  say  about  its  treatment  will  throw 
considerable  light  upon  the  question  whether  an  appeal  is  proper. 

The  whole  subject  of  discipline  is  treated  in  Article  VI  of 
Chapter  V,  and  the  provisions  which  apply  to  this  case  are  con 
tained  in  Sections  4  and  6  of  that  Article,  f 

No  general  regulations  for  the  government  of  Courts  Martial 
(which  I  consider  to  be  the  meaning  of  the  words,  "such 


fSECTIONS  4  AND  6,  ARTICLE  VI,  CHAPTER  V. 

SECTION  4.  Courts  Martial  shall  be  governed  in  their  mode  of  proceed 
ing  and  rules  of  evidence  by  the  Revised  United  States  Army  Regulations 
and  established  military  usage,  and  such  orders  as  may  be  issued  from 
Headquarters :  Provided,  however,  That,  in  the  willful  absence  of  the  ac 
cused,  after  due  notice  of  the  time  and  place  of  trial  has  been  given  to  him, 
or  left  at  his  usual  place  of  abode,  the  Court  may  proceed  in  all  respects  as  if 
he  were  present  and  pleaded  "not  guilty." 

SECTION  6.  No  sentence  of  a  Court  Martial  shall  be  carried  into  execution 
until  after  the  whole  proceedings  shall  have  been  laid  before  the  officer  or 
dering  the  same,  or  his  successor  in  office,  for  his  confirmation  or  disapproval 
and  orders  in  the  case ;  and  no  sentence  of  dishonorable  discharge  from  the 
Grand  Army  of  the  Republic,  except  by  Court  Martial  convened  by  order  of 
the  Commander-in-Chief,  shall  be  carried  into  execution  until  after  the  whole 
proceedings  shall  have  been  laid  before  the  officer  next  superior  to  the  one 
ordering  the  Court,  for  his  confirmation  or  disapproval  and  orders  therein. 

NOTE— See  Opinions;  LXIV,  LXXIII,  CV,  CXLV. 


OF   THE   GRAND    ARMY    OF   THE    REPUBLIC.  77 


orders  as  may  be  issued  from  Headquarters,")  have  ever  been 
promulgated ;  so  a  Court  is  to  be  governed  by  military  usage, 
and  no  intimation  is  given  that  the  decision  of  the  proper  review 
ing  officer  is  subject  to  appeal,  any  further  than  military  usage 
gives  one.  In  this  case  the  proper  reviewing  officer  passed  upon 
the  sentence,  and  returned  the  papers  with  his  orders  therein. 

Upon  the  principles  of  criminal  law,  civil  and  military,  a  de 
cision  in  favor  of  the  accused  is  generally  conclusive,  and  no 
appeal  is  granted  to  the  prosecuting  authority.  From  humane 
considerations  objections  by  a  prisoner  are  allowed,  and  if  found 
valid,  even  where  his  substantial  guilt  is  established,  he  is  dis 
charged  or  a  new  trial  is  granted  him.  It  would  be  introducing 
an  anomaly  into  criminal  practice  to  subject  a  prisoner  to  a  sec 
ond  trial  even,  after  he  had  been  acquitted  by  the  ruling,  though 
presumably  incorrect,  upon  the  merits  of  the  case,  of  the  author 
ity  legally  constituted  to  decide  it. 

If  the  reviewing  officer  had  approved  the  sentence  of  the  Court 
in  this  case,  and  the  accused  had  appealed  from  the  sentence, 
would  not  the  Post  have  urged  that,  in  a  case  like  the  present, 
the  Regulations  had  granted  full  power  and  authority  to  the  De 
partment  Commander  to  approve  and  execute  the  findings  of  the 
Court? 

No  doubt,  if  the  Department  Commander  was  uncertain  of  the 
law,  he  might  submit  to  National  Headquarters  such  questions 
as  occurred  to  him,  and  would  be  governed  in  his  decision  of 
the  case  by  the  answers  he  should  receive,  but  this  is  in  his  dis 
cretion.  He  has  not  seen  fit  to  do  so,  and  has  decided  the 
questions  which  are  raised  and  have  never  been  decided  by 
higher  authority.  I  do  not  see  that  an  appeal  should  be  granted 
the  prosecutor  where  one  could  not  be  claimed  by  the  accused. 


78  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


OPINION  LVII.     OCTOBER  29,  1873. 

Report  of  investigating  committee,  ballot  and  muster. 

Where  the  committee  reports  favorably  without  having  seen  the  applicant,  and  the  ballot  has 

been  taken,  the  ballot  should  be  set  aside  by  the  Department  Commander. 
The  applicant  not  being  mustered,  has  no  claims. 

The  committee  on  an  application  for  admission  to  a  Post 
reported  favorably,  and  on  ballot  the  applicant  was  elected. 
Immediately  after,  at  the  same  meeting  and  before  his 
muster,  it  was  stated  to  the  Post  by  a  member  not  present 
at  the  time  of  balloting,  that  the  candidate  was  an  unfit 
person  to  become  a  member,  and  the  committee  then 
acknowledged  that  they  had  neglected  their  duty,  and  had 
not  seen  the  candidate  in  person.  Must  the  Post  proceed 
to  muster  him,  or  what  can  they  do  in  the  premises  ? 

The  Post  in  electing  the  candidate  acted  on  the  faith  that  the 
investigating  committee,  as  implied  by  their  favorable  report, 
had  performed  their  duty.  If  they  had  known  the  truth,  that 
they  had  not  before  them  the  information  they  had  a  right  to  pos 
sess  before  balloting,  it  is  to  be  presumed  that  they  would  have 
postponed  action.  I  think  the  Post  ought  not  to  be  debarred 
from  a  true  expression  of  their  opinion  and  wishes  by  the  negli 
gence  of  the  committee.  In  ordinary  cases  I  should  hold  an 
election  to  be  conclusive,  but  it  appears  to  me  that  the  circum 
stances  of  this  case  are  so  peculiar  as  to  call  for  the  interposition 
of  the  Department  Commander.  I  think  he  should  order  the 
report  and  vote  to  be  declared  void,  and  the  committee,  or  a 
new  one,  to  investigate  and  report  at  a  subsequent  meeting,  and 
thereupon  a  new  ballot  to  be  taken. 

As  the  applicant  has  not  been  mustered,  he  can  have  no  claims 
in  the  matter. 

NOTE— See,  also,  Opinion  LXXII. 


OF   THE    GRAND    ARMY    OF   TUB:    REPUBLIC.  79 


OPINION  LYI1I.     JANUARY   i,  1874 

Rules  and  Regulations— A  By-Law  requiring  all  members  of  a  Post,  when  present,  to  vote  on 

all  questions  unless  excused,  is  valid. 
Electio  i— Where  a  vote  is  taken,  and  the  Post  Commander's  attention  is  called  to  the  fact,  and 

the  By-Law  is  not  enforced,  the  vote  is  invalid,  and  the  election  is  void. 

The  question  is  referred  to  me  whether  the  election  of 
an  officer  by  a  Post  which  has  in  force  a  rule  of  order  re 
quiring  that  all  members  entitled  to  vote  shall  vote  on  all 
questions  (unless  excused  by  a  vote  of  the  Encampment  to 
be  taken  without  debate),  is  valid,  when  all  the  members 
present  do  not  vote,  though  none  were  excused,  and  atten 
tion  was  called  to  that  fact  before  the  result  of  the  ballot 
was  declared  ? 

The  rule  of  order  is  not  inconsistent  with  the  General  Regula 
tions  ;  indeed  it  is  an  exact  copy  of  one  of  the  Rules  of  Order  of 
the  National  Encampment.  It  is  therefore  binding  upon  the  Post 
until  is  is  repealed.  If  no  notice  had  been  called  to  the  fact 
that  some  members  did  not  vote,  and  the  vote  had  been  declared, 
it  would  have  been  a  matter  of  inference  that  the  rule  had  been 
complied  with ;  but  the  point  was  taken  at  the  very  time  when 
the  rule  of  order  was  intended  to  apply. 

The  Post  Commander  should  then  have  enforced  the  rule. 
The  Posts  have  by  this  rule  of  order  limited  themselves  to  a  cer 
tain  prescribed  way  of  expressing  their  decisions,  viz. :  by  a  full 
vote  of  all  members  present.  The  declaration  of  a  vote  by  the 
presiding  officer  is  a  declaration  in  effect  that  the  Post  have  ex 
pressed  their  will  upon  the  question  pending,  as  this  rule 
prescribes  they  shall  do.  But  it  is  admitted  in  this  case  that 
such  was  not  the  fact. 

I  think  the  vote  was  invalid,  and  the  election  is  void.  A  new 
election  should  be  held  to  fill  the  vacancy  as  soon  as  possible 
under  the  Regulations. 


80  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


OPINION  LIX.     JANUARY  22,  1874. 

Parliamentary  Law — In  counting  the  votes  cast  to  determine  whether  or  not  a  candidate  has  a 
majority,  ignore  all  ballots  cast  for  ineligible  candidates. 

At  the  annual  election  of  Officer  of  the  Day,  there  were 
three  candidates  nominated.  Upon  the  first  ballot  there 
was  no  choice.  A  second  ballot  was  ordered  and  the  Com 
mander  called  the  attention  of  the  Post  to  the  Regulations, 
Chapter  II,  Article  VII,  Section  2,  requiring  the  person 
who  had  received  the  lowest  number  of  votes  to  be  drop 
ped.* 

The  ballots  were  collected  and  counted,  and  the  vote 
stood,  E,  T.  C.,  37;  D.  H.,  36;  and  one  ballot  for  the 
candidate  who  had  received  the  lowest  number  of  votes  on 
the  first  ballot. 

The  Commander  ruled  that  the  scattering  vote  should  be 
counted  in  the  aggregate,  and  that  therefore  there  was 
again  no  choice. 

From  this  decision  an  appeal  is  taken. 

The  Commander  then  ordered  a  third  ballot,  and  after 
all  had  voted  who  desired,  declared  the  polls  closed.  The 
ballots  were  counted  by  the  tellers,  and  announced  to  the 
Commander,  as  follows : 

Whole  number  of  votes  cast,  74;  necessary  for  a  choice, 
38.  H.  has  37,  C.  has  37.  The  Commander  not  having 
voted,  then  deposited  a  ballot  for  C,  and  declared  him 
elected. 

From  this  action  an  appeal  is  taken  by  H. 


*  ARTICLE  VII,  CHAPTER  II. 

SECTION  2.  In  case  of  a  ballot  for  officers,  a  majority  of  ail  the  votes 
cast  shall  be  necessary  to  a  choice.  If  there  is  no  election  on  the  first  two 
ballots,  the  name  of  the  Comrade  receiving  the  lowest  number  of  votes  shall 
be  dropped,  and  so  on  in  successive  ballots,  until  an  election  is  made. 


OF    THE    GRAND    ARMY    OF   THE    REPUBLIC.  81 


The  questions  raised  are  points  of  parliamentary  law,  and  do 
not  involve  the  Regulations  of  the  Grand  Army.  I  am  of  the 
opinion  that  according  to  the  best  usage  in  this  country,  the  pre 
siding  officer's  decision  was  erroneous  in  both  cases  ;  but  having 
reached  that  conclusion  in  regard  to  the  first  ruling,  it  is  unnec 
essary  to  discuss  the  second. 

In  counting  the  number  of  votes  cast  to  determine  whether  or 
not  a  candidate  has  a  majority,  the  settled  rule  seems  to  be  to 
ignore  all  ballots  cast  for  ineligible  candidates.  Certainly  this 
is  the  rule  when  the  candidate  is  ineligible  under  the  rules  gov 
erning  the  assembly,  and  attention  is  called  to  the  Regulations 
at  the  time  the  polls  are  opened.  The  contrary  decision  would 
put  it  in  the  power  of  the  minority,  who  voted  for  the  candidate 
who  stood  lowest,  to  postpone  a  choice  indefinitely,  and  would 
defeat  the  object  of  the  Regulation.  The  scattering  ballot  should 
not  have  been  counted  in  the  ki  whole  number  of  votes  cast," 
and  consequently  E.  T.  C.  received  a  majority  and  was  elected. 

In  Cushing's  Law  and  Practice  of  Legislative  Assemblies, 
Chapter  VI,  Paragraph  180,  page  67,  the  following  language  is 
used  upon  the  point  in  question : 

"In  reference  to  elections  in  which  an  absolute  majority  is 
requisite  for  a  choice,  and  in  which  consequently  the  whole  num 
ber  of  votes  received  is  first  to  be  ascertained,  votes  given  for 
ineligible  persons  must  of  course  be  excluded  from  the  enumer 
ation,  for  the  reason,  that  as  the  whole  balloting  would  be  void, 
and  all  the  votes  were  excluded  if  they  were  all  for  such  candi 
dates,  it  would  be  preposterous  to  enumerate  such  votes  when 
they  constituted  a  part  only  of  any  of  the  votes  given  in.  If,  in 
consequence  of  such  exclusion,  the  result  of  the  election  would 
be  different  from  what  it  would  otherwise  be,  the  whole  proceed 
ing  must,  perhaps,  be  held  void  or  valid,  according  as  the  elect 
ors  have  actual  or  presumed  knowledge  of  the  ineligibility  of  the 
persons  for  whom  the  excluded  votes  are  given." 

The  appeal  from  the  first  decision  is,  in  my  opinion,  well  ta 
ken,  and  the  candidate-elect  should  be  installed. 


82  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


OPINION  LX.     APRIL   18,  18/4. 

Rules  and  Regulations — Per  Capita  Tax — Must  be  assessed  on  all  alike,  and  once  assessed 
can  not  be  remitted,  except  as  provided  in  the  Rules  and  Regulatians. 

At  the  organization  of  a  Post  one  of  the  Comrades  who 
had  rendered  efficient  services  to  the  Grand  Army  was  as 
sured  by  the  Post  that  he  should  be  exempt  from  clues,  and 
no  dues  have  been  demanded  of  him  to  the  date  of  the 
communication,  November  7,  1873.  At  a  Post  meeting, 
held  November  7,  a  Comrade  insists  upon  the  enforcement 
of  that  provision  of  the  Regulations  relating  to  the  assess 
ment  of  a  per  capita  tax,  and  that  the  remission  to  the 
Comrade  is  illegal. 

The  Post  urge,  that  inasmuch  as  the  action  of  the  Post 
was  previous  to  the  passage  of  the  law,  it  was  not  intended 
to  apply  to  the  case,  and  would  not  affect  the  status  of  the 
Comrade.  The  Comrade  is  able  to  pay  the  taxes,  but  the 
Post  wish  to  remit  them  as  a  compliment  to  him. 

By  inspection  of  the  Rules  and  Regulations,  edition  1868, 
adopted  at  the  first  National  Convention,  it  will  appear  that  the 
imposition  of  a  tax  upon  each  member  of  the  Post  was  obliga 
tory.  Article  XII,  Section  i,  reads  as  follows: 

"The  annual  dues  to  a  Post  from  each  member  shall  not  be 
less  than  one  dollar." 

The  Department  in  which  this  Post  is  situated  was  organized 
February  20,  1868,  a  little  more  than  a  month  after  the  Regula 
tion  was  adopted,  and  the  law  did  not  then  allow  exemptions  or 
remissions,  except  for  the  same  causes  as  at  present.  But  if  it 
had  been  otherwise,  any  action  of  the  Post  must  have  been  sub 
ject  to  the  liability  of  being  repealed  or  overruled  by  a  new  en 
actment  or  change  of  the  Regulations  by  the  National  Encamp 
ment,  and  would  have  become  void  from  the  time  such  new 
Regulation  went  into  operation. 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.     83 

The  next  year,  1869,  the  Regulations  were  thoroughly  revised, 
and  Section  3,  of  Chapter  V,  Article  III,  was  then  adopted  in 
the  same  words  which  are  now  in  force.* 

This  Section  gives  to  each  Post  the  power  to  assess  a  per  capita 
tax  upon  its  members,  and  Section  3,  of  Article  IV,f  of  the  same 
Chapter,  permits  a  Post  to  remit  the  dues  of  a  Comrade  who  is 
unable,  from  sickness  or  misfortune,  to  pay  them.  The  latter 
Section  has  also  remained  unaltered  to  the  present  time. 

The  right  to  assess  a  tax  is  only  granted  on  condition  that  it 
shall  be  a  per  capita  one  ;  that  is,  that  it  shall  be  assessed  upon 
each  member ;  and  it  is  plain  that  no  remission  of  a  tax  once 
assessed  can  be  made,  except  for  the  causes  and  in  the  manner 
prescribed  in  the  Section  last  above  referred  to. 

If  a  Post  may  exempt  one  of  its  members  from  the  payment  of 
a  tax  at  its  will,  it  may  so  compliment  two  or  more,  or  all  but 
one,  and  so  may  throw  upon  one  unfortunate  Comrade  the  whole 
expense  of  conducting  it.  So  long  as  such  a  burden  is  unani 
mously  submitted  to  no  one  complains,  and  practically  there  is 
no  damage  and  no  remedy ;  but  as  soon  as  one  Comrade,  as  in 
this  case,  calls  for  the  enforcement  of  the  law,  it  must  be  put  in 
operation. 

Inasmuch  as  the  Comrade  has  not  refused  to  pay  his  tax,  but 
the  Post  are  in  error  in  not  demanding  it,  I  would  recommend 
that  they  begin  the  collection  of  the  tax  from  the  time  when  the 
error  was  discovered. 


*  ARTICLE  III,  CHAPTER  V. 

SECTION  3.  Each  Post,  either  by  its  By-Laws  or  by  a  vote  at  the  last 
meeting  in  December,  may  assess  a  per  capita  tax  upon  its  members,  pay 
able  in  equal  quarterly  installments,  on  the  first  days  of  January,  April,  July 
and  October. 

t  See  Section  3,  Article  IV,  Chapter  V,  at  close  of  Opinion  II. 


84  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


OPINION  LXI.     DECEMBER  5,  1874. 

Withdrawal  Card — Where  a  Comrade  applies  for  a  withdrawal  card,  receives  it  and  retains  it 
without  any  expression  to  the  Post  that  he  desired,  not  a  withdrawal  card,  but  a  transfer 
card,  he  can  not,  after  he  has  applied  to  the  Post  for  admission  again  and  has  been  re 
jected,  claim  it  to  be  a  mistake  and  demand  a  transfer  card. 

Department  Commander  has  no  authority  to  interfere — When. 

H.  M.,  a  Comrade  in  good  standing  of  Post  No.  13, 
Department  of  -  — ,  on  the  3d  day  of  July,  1874, 

addressed  a  communication  to  the  Post  in  these  words : 

"JULY  3,  1874. 

"  To  the  Officers  and  Members  of—      -  Post,  No.  /j,  G.  A.  R.: 

"I  respectfully  ask  for  my  withdrawal  card  from  your 
Post.  Inclosed  please  find  one  dollar  for  dues  for  the 
quarter  ending  June  30,  and  fifty  cents  to  pay  for  my  card. 
Hoping  it  will  meet  with  your  approval, 

I  remain  yours  in  F.,  C.  and  L., 

H.  M. 

P.  S.-- — Forward  the  card  to  me  as  soon  as  possible. 

H.  M  " 

The  Commander  of  the  Post  understood  this  to  be  a  request 
for  a  discharge,  and  on  July  5th  granted  and  forwarded  such 
discharge.  Some  time  afterwards  H.  M.  applied  to  be  re-admit 
ted  to  the  Post,  and  his  application  was  voted  upon  and  rejected. 
It  appears  from  the  report  of  the  Inspector,  who  was  directed  to 
examine  this  case,  that  H.  M.  intended  by  his  first  application 
to  make  a  request  for  a  transfer  card,  but  after  receiving  a  dis 
charge  he  was  advised  to  regain  his  membership  by  a  new  appli 
cation.  After  his  rejection,  he  applied  to  the  Department  Com 
mander  to  order  a  reconsideration  of  the  ballot  against  him,  on 
the  ground  that  such  ballot  was  "willfully,  designedly  conducted 
so  as  to  oust  him  from  the  Post,"  and  was  the  action  of  J.  F. ,  a 
Comrade  of  the  Post,  "  on  an  old  political  bias,  for  political  pur 
poses."  In  the  appeal  certain  charges  against  this  Comrade  are 
recited,  apparently  to  substantiate  the  statement  on  which  the 
appeal  is  founded,  and  to  show  personal  hostility  on  his  part. 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.     85 


On  the  first  day  of  October,  1874,  the  Department  Com 
mander,  having  received  the  report  of  the  Department  Inspector 
on  the  facts  of  the  case,  issued  a  special  order  "rescinding,  an 
nulling,  abrogating  and  declaring  void"  all  the  acts  and  doings 
of  the  Post  in  respect  to  the  case,  and  restoring  the  said  M.  to 
membership  in  the  Post,  and  directing  the  Post,  upon  his  appli 
cation,  to  grant  him  a  transfer  card. 

From  this  decision  the  Post  appeal  to  National  Headquarters : 

First — Because  the  appeal  of  M.  was  not  forwarded  through  the 
proper  channels. 

Second — Because  the  Post  were  justified  in  the  construction  they 
put  upon  the  application  of  M.,  he  having  been  an  officer  of  the 
Post  for  nearly  three  years,  and  competent  to  understand  the 
proper  terms  in  which  to  apply  for  a  transfer  card,  if  he  desired 
one. 

T/^VT/— Because  M.  never  informed  the  Post  that  they  had  mis 
taken  the  meaning  of  his  application,  or  asked  them  to  rectify 
the  mistake,  until  after  he  had  made  a  new  application  to  be 
admitted  and  this  application  had  been  rejected. 

• 

Fourth. — Because  M.,  in  applying  for  re-admission,  in  the  or 
dinary  form,  recognized  the  fact  that  he  was  no  longer  a  member 
of  the  Order,  and  waived  all  right  to  have  the  former  action  of 
the  Post  reviewed. 

Fifth. — Because  a  Department  Commander  has  no  power  to 
annul  a  ballot,  or  to  inquire  into  the  motive  of  those  who  vote  to 
reject  an  application. 

Sixth. — Because  the  action  of  the  Post  can  only  be  set  aside 
on  evidence  that  there  was  a  conspiracy  to  defraud  M.,  contrary 
to  the  Rules  and  Regulations,  of  which  there  is  no  evidence,  7, 
8,  9,  10;  because  various  statements  in  the  appeal,  reflecting  on 
the  Post,  are  untrue. 

Upon  the  full  record  of  the  case  referred  to  me,  I  am  of  opin 
ion  that  the  appeal  of  the  Post  must  be  sustained. 

I  am  reiterating  the  substance  of  a  former  opinion,  and  the 
ruling  of  a  former  Commander-in-Chief,  in  saying  that  when  a 
Comrade  of  the  Grand  Army  of  the  Republic  deposits  a  ballot 
upon  the  question  of  the  reception  of  an  applicant,  he  is  only 


86  OPINIONS    OF    JUDGE   ADVOCATES-GENERAL 


responsible  to  his  own  conscience  for  this  exercise  of  his  right 
of  choice.  From  the  very  nature  of  the  act  he  can  not  be  called 
in  question  for  it.* 

But  it  does  not  follow  that  every  ballot  is  therefore  valid.  |  The 
applicant  may  be  ascertained  to  have  been  ineligible,  or  his 
application  may  not  have  been  regularly  before  the  Post  for  its 
action,  and  in  such  cases  affirmative  action  would  be  invalid  ;  or 
he  may  have  been  already  a  member  of  the  Post,  and  in  such 
case  a  rejection  would  be  harmless.  If  the  Department  Com 
mander  were  justified  in  annuling  the  discharge  given  to  M., 
that  act  would  necessarily  avoid  any  subsequent  proceedings  of 
the  Post  on  M. 'supplication  to  become  a  member.  If  he  .were 
already  a  member,  his  application  and  the  ballot  upon  it  would 
be  alike  idle. 

*The  first  objection  of  the  Post  can  hardly  affect  this  case,  as, 
if  the  Post  are  sustained  in  holding  to  the  validity  of  the  dis 
charge,  M.  was  not  a  member  of  the  Order,  and  might  well  ad 
dress  directly  any  of  its  officers.  They  might,  however,  draw  from 
this  circumstance  an  inference  that  M.  understood  himself  to  be 
butside  the  Grand  Army.  9 

The  case  rests,  then,  upon  the  decision  of  the  question,  whether 
'the  2,  3  and  4  points  of  the  Post's  appeal  are  well  taken,  and  I 
have  no  hesitation  in  saying  that  I  think  they  are  conclusive. 
The  first  mistake  arose  on  the  part  of  the  applicant.  When  he 
used  language  capable  of  two  constructions,  he  gave  the  Post  the 
right  to  act  upon  such  of  the  two  as  they  chose  to  place  upon  it, 
and  it  seems  to  me  that  they  did  take  the  more  natural  construc 
tion.  A  withdrawal,  to  be  sure,  might  be  absolute  or  only  to  join 
another  Post ;  but  if  designed  to  be  limited,  the  limitation  would 
naturally  be  expressed.  A  person  who  had  been  officially  famil 
iar  with  the  business  of  ^he  Post  for  a  long  time  ought  to  have 
qualified  an  application  for  leave  to  sever  his  relations  with  the 
Post,  unless  he  desired  to  leave  the  Order  altogether.  J 


*See  Opinion  XV. 
f  See  Opinion  XI. 

+  For  the  distinction   between    "transfer  card"   and    "discharge,"   see 
Opinion  XXXV. 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.'    87 


But,  when  the  discharge  was  received,  if  it  had  been  immedi 
ately  returned  with  a  request  to  have  a  transfer  card  substituted, 
no  doubt  on  reasonable  proof  that  a  mistake  had  been  commit 
ted,  the  Post  would  have  corrected  it,  or  perhaps,  on  application, 
the  Department  Commander  might  have  compelled  such  correc 
tion. 

It  does  not  appear,  and  it  is  expressly  denied  by  the  Post,  that 
any  such  request  was  made.  The  discharged  Comrade  seems  to 
have  accepted  the  situation,  and  applied  again  for  admission  to 
membership.  I  can  not  look  upon  this  act  as  anything  else  than 
an  absolute  waiver  of  any  claim  to  be  considered  still  a  member, 
and  of  any  right  to  challenge  the  previous  action  of  the  Post. 
Indeed,  M.  himself  takes  the  same  position  in  his  communication 
to  the  Department  Commander.  He  does  not  apply  to  have  the 
transfer  card  substituted  for  a  discharge,  but  asks  "for  a  recon 
sideration  of  the  final  ballot."  He  desires  to  renew  his  attempt 
to  join,  in  the  same  mode  that  proved  unsuccessful  before. 

I  think,  then,  that  the  action  of  the  Post  should  be  sustained, 
inasmuch  as  if  mistaken,  the  mistake  was  caused  by  the  appli 
cant,  and  was  acquiesced  in  by  him  in  such  a  manner  as  to  now 
estop  him  from  appealing  from  it.  It  is  not  material  to  consider 
the  various  allegations  of  misconduct  made  by  M.,  and  denied 
by  the  Council  of  Administration.  There  is  no  evidence  to  sup 
port  them,  and  the  defence  is  prima  facie  complete  :  a  demurrer 
would  have  been  the  more  proper  answer. 


OPINION  LXII.     JANUARY  20,  1875. 

Rules  and  Regulations — A  Comrade  can  only  leave  a  Post  honorably  either  by  a  discharge  or 

transfer  paper. 
Membership— A  person  once  a  member  of  a  Post  can  not  absolve  himself  from  his  duties  to  that 

Post;  non-attendance  or  non-payment  of  dues  does  not  release  him. 
Can  not  join  a  second  Post  until  released  from  the  first. 

G.  W    B.  joined  Post  No.  3,  Department  of ,  April 

7,     1871;    was    reported    "reinstated    from    suspended," 
June  30,  1872;    reported  January  7,  1873,  as  eight  months 


88  OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 

in  arrears;  no  action  taken  till  March  27,  1873,  when, 
having  received  notice,  neglecting  to  pay  his  dues,  he  was 
suspended.  It  appears  that  he  never  attended  a  meeting 
of  the  Post  after  his  muster,  and  that  he  did  not  take  the 
new  obligation  when  grades  were  abolished.  Having  been 
informed,  as  he  says,  that  his  name  was  dropped  from  the 
rolls  of  Post  No.  3,  he  applied,  in  the  usual  form,  to  join 
a  new  Post,  No.  16,  and  was  admitted  and  reinstated 
therein  September  25,  1874. 

Post  1 6  having  subsequently  learned  the  fact  of  his 
former  connection  with  Post  3,  applied  to  that  Post  for 
information  of  his  standing,  and  proposed  the  question  of 
his  status  to  the  Department  Commander.  Upon  refer 
ence  of  the  case  to  him,  the  Department  Judge  Advocate 
submitted  his  opinion  as  follows : 

''HEADQUARTERS  DEPARTMENT  OF  -     — ,  G.  A.  R., 

November  6,  1874. 

"  COMMANDER  :  I  have  the  honor  to  submit  the  following 
opinion,  in  answer  to  the  case  presented  by  Post  No.  16,  Grand 
Army  of  the  Republic. 

"The  facts  as  presented  are  as  follows:  G.  W.  B.,  in  1870 
or  1871,  was  duly  mustered  into  Post  No.  3,  did  not  attend  any 
of  its  meetings,  but  the  Post  has  never  taken  any  official  action 
in  his  case,  and  he  has  never  been  discharged  therefrom.  That 
afterwards,  and  while  still  a  member  of  said  Post,  he  was  mus 
tered  into  Post  No.  1 6,  and  is  now  in  the  anomalous  condition 
of  being  an  apparent  member  of  two  Posts.  By  reference  to 
Chapter  II,  and  Article  II,  Sections  i  to  7,*  Articles  III  and  IV, 
of  Chapter  II,f  it  will  be  seen  that  when  a  person  once  becomes 
a  member  of  our  oganization,  he  does  not  cease  to  be  one 
except  he  and  his  Post,  acting  together,  shall,  in  a  regular  man 
ner,  absolve  him  from  the  duties  to  that  Post ;  that  mere  non- 
attendance  or  non-payment  of  dues  do  not  relieve  him  from  its 


*  See  Opinion  XI. 
f  See  Opinion  III. 


OF    THE    GRAND    ARMY    OF    THE    REPUBLIC. 


jurisdiction  over  him.      No\v,  Comrade  B.  is  still  a  member  of 
Post  3.  and  his  muster  into  Post  16  is  irregular  and  voidable. 

'•  He,  or  Post  16,  or  both  together,  must  apply  to  Post  3  for 
their  consent  to  relinquish  their  jurisdiction  over  him,  and,  with 
this,  the  Commander  will  issue  the  necessary  dispensation  for 
Comrade  B.  to  become  a  full  affiliated  member  of  Post  16. 

All  of  which  is  respectfully  submitted  in  F.,  C.  and  L. , 

L.  N.  F., 

Jui/ge  Advocate." 

Post  16  transmitted  a  copy  of  this  Opinion  to  Post  3,  and 
requested  a  dispensation  from  Post  3,  allowing  the  muster  of  B. 
in  Post  1 6. 

In  reply,  Post  3  voted  to  grant  B.  a  transfer  card  on  the  pay 
ment  of  accrued  dues  for  one  year  ($4.00).  Post  16  now 
appeals  from  the  decision  of  the  Department  Commander  ap 
proving  the  Opinion  of  the  Judge  Advocate,  taking  the  ground 
that  B.,  having  been  mustered  into  the  Grand  Army  of  the 
Republic  before  the  present  work  was  adopted,  ceased  to  be  a 
member  January  i,  1872,  because  he  did  not  take  the  new  obli 
gation  before  that  time  ;  that  he  was  then  as  fully  separated  from 
the  Order  as  if  he  had  never  joined  ;  that  he  was  not  considered 
a  member  by  Comrades  of  Post  3  ;  and  that  these  features  of 
the  case  were  not  considered  by  the  Judge  Advocate  in  his 
Opinion.  They  further  remark  that  they  can  not  see  the  appli 
cation  of  the  reference's  to  the  Regulations  contained  in  the 
Opinion. 

It  is  evident  that  the  citation  of  the  Regulations  was  incorrectly 
copied  by  some  one,  in  the  Opinion  sent  to  the  Post.  The  Reg 
ulations  are  plain  enough,  however,  on  the  points  decided  by  the 
Judge  Advocate. 

If  B.,  when  he  applied  for  admission  into  Post  16,  was  in  the 
condition  simply  of  a  Comrade  who  had  been  dropped  from  the 
rolls  of  Post  3,  he  could  only  be  reinstated  in  the  Grand  Army 
through  Post  3.  Regulations,  Chapter  V,  Article  IV,  Section  4. 
See,  also,  Opinion  I.  Judge  Advocate-General's  office,  May  25, 
1872,*  and  Opinion  XLII,  December  19,  1872. 

*  Opinion  XXXV,  of  this  hook.  See,  also.  Opinions  CVIII,  CXV,  CXVI, 
on  same  questions. 


90  OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 

This  appears  from  the  records  to  have  been  his  position.  But 
it  is  objected  that  the  adoption  of  the  new  work  gave  the  Com 
rade  the  choice  either  to  come  forward  and  take  the  new  work, 
or  by  neglecting  to  do  so  for  a  certain  time,  to  discharge  himself 
from  the  Order  and  all  his  obligations  to  it.  If  such  was  the  re 
sult  of  his  neglect,  he  did  place  himself  outside  the  Order,  and 
could  not  be  affected  by  the  action  of  the  Post  suspending  him, 
or  debarred  from  joining  any  Post  which  would  vote  him  in. 

The  system  of  grades  was  adopted  May,  1869,  and  abandoned 
May,  1871.  A  resolution  was  adopted  by  the  National  Encamp 
ment  at  the  latter  date,  allowing  all  former  members  of  the  grades 
of  recruit  and  soldier  to  take  the  new  obligation  at  any  meeting 
of  their  Posts  at  which  they  might  present  themselves,  and  con 
tinuing  the  membership  of  Comrades  of  the  third  grade  without 
requiring  of  them  any  new  obligation.  Proceedings  of  the  Na 
tional  Encampment,  1871,  page  46,  General  Order  No.  3,  Head 
quarters  Grand  Army  of  the  Republic,  New  York,  June  14,  1871. 

In  this  resolution  no  time  is  limited  within  which  the  election 
must  be  exercised.  The  Comrade  might  have  appeared  at  any 
meeting  of  the  Post,  before  he  was  dropped  for  arrears,  and  have 
taken  the  new  obligation.  His  neglect  up  to  that  time  had  not 
deprived  him  of  his  membership.  He  had  made  and  could  make 
no  choice  which  would  preclude  him  from  coming  in  when  he 
saw  fit.  He  was  then,  to  all  intents  and  purposes,  in  the  con 
dition  of  a  Comrade  who  had  not  received  a  new  countersign, 
but  was  entitled  to  have  it  communicated  to  him  on  application. 

The  Regulations  then,  as  now,  provided  a  method  of  leaving 
the  Post  if  he  desired-— that  is,  by  asking  for  a  discharge  or  trans 
fer  paper.  His  option,  then,  was  to  take  the  new  obligation  and 
remain  in  the  Post  in  full  membership,  or  to  receive  a  discharge 
or  transfer.  He  had  never  exercised  this  option,  and  was  still 
liable  to  pay  dues  when  he  was  dropped  from  the  rolls.  His  ad 
mission  to  another  Post  was  contrary  to  the  Regulations,  and 
void.  The  recital,  in  his  application,  that  he  had  not  made  pre 
vious  application  to  join  any  Post,  was  untrue  ;  or,  if  that  was 
omitted,  the  mustering  officer  neglected  his  plain  duty. 


OF    THE    GRAND    ARMY    OF    THE    REPUBLIC.  91 


The  offer  of  Post  3,  to  grant  him  a  transfer  on  payment  of  one 
year's  dues  only,  is  so  favorable  that  it  seems  strange  he  should 
hesitate  to  accept  it. 

NOTE — Chapter  II,  Article  II,  Section  10,  as  amended  by  National  Encampment,  May, 
1875,  requires  a  Comrade,  who  has  neglected  to  take  the  obligation  of  the  third  grade,  to  make 
application  to  be  admitted  as  a  recruit. 


OPINION  LXIII.     JANUARY  25,  1875. 

Dues  —  Applies  to  nothing  except  the  annual  tax. 

Assessments — Compulsory;  limited  to  the  levy  of  an  annual  tax 

Transfer  card — A  By-Law  of  a  Post  fixing  fee  for  each  transfer  card  is  void. 

Nineteen   Comrades  of  Post  79,  Department  of , 

having  paid  their  dues  in  advance  for  the  current  quarter, 
asked  for  transfer  cards  at  a  regular  meeting  of  the  Post. 
The  Post,  by  laws  adopted  while  these  nineteen  members 
were  Comrades  of  the  Post,  imposed  a  fee  of  one  dollar 
to  be  paid  for  each  transfer  card.  This  fee  was  demanded, 
and  finally  paid,  under  protest.  The  Comrades  became 

Charter-members  of  Post  No.  80,  Department  of , 

and  that  Bost  presented  the  case  to  the  Judge  Advocate, 
who  holds  that  the  word  "dues,"  in  Chapter  II,  Article 
IV,  Section  2,  of  the  Rules  and  Regulations,*  includes  the 
transfer  fee,  because  the  members  of  the  Post,  by  adoption 
of  the  By-Law,  had  contracted  to  pay  such  fee,  and  made 
it  "  due  "  to  the  Post  from  themselves  or  others  desiring 
transfers,  and  therefore  the  fee  was  legally  collected.  From 
this  decision  Post  No.  80  appeals  to  National  Headquarters. 

It  would,  perhaps,  be  sufficient  to  say,  in  answer  to  the  ruling 
of  the  Judge  Advocate,  that  the  question  has  been  settled  by 
Opinion  III,  of  August  n,  1871,  approved  by  the  then  Com- 
mander-in-Chief  and  subsequently  by  the  National  Encampment 


*  See  Section  2,  Article  IV,  Chapter  II,  at  close  of  Opinion  III. 


92  OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


held  May,  1872,  and  promulgated  in  their  Proceedings,  page 
68  ;  but  as  that  Opinion  contained  no  discussion  of  the  question, 
it  may  be  well  to  consider  the  reasons  which  support  it.  The 
word  ';  dues  "  in  our  Regulations,  occurs  first  in  the  first  edition 
adopted  at  Philadelphia,  January,  1868,  as  part  of  the  title  of 
Article  XII. 

,  "DUES    AND    REVENUE." 

The  first  Section  of  that  Article  is  as  follows : 

SECTION  i.  The  annual  dues  to  a  Post  from  each  member 
shall  not  be  less  than  one  dollar. 

SEC.  2  provides :  The  Department  dues  shall  not  be  less 
than  ten  cents  per  annum  upon  each  member  upon  the  rolls  of 
the  Posts  within  the  Department,  etc. 

SEC.  3.      Departments,  as    soon    as    organized,  may    fix    such 
higher  rates  in  Post  and  Department  dues  as  their  special  neces 
sities  may  require. 
******** 

SEC.  5.  The  dues  to  the  National  Encampment  shall  be  two 
cents  per  annum  upon  each  member  of  the  Order,  etc. 

In  1869,  a  thorough  revision  of  the  Rules  and  Regulations  was 
adopted,  and  the  subjects  treated  of  were  carefully  classified. 

Under  the  head  of  "Dues  and  Revenues,"  as  the  title  of 
Article  III.  of  Chapter  V,  we  find  the  same  language,  which 
defines  the  term  in  every  edition  of  the  Regulations  since  that 
time. 

The  word  "dues,"  therefore,  in  the  universal  usage  of  the 
Grand  Army  from  the  moment  that  it  became  a  recognized 
National  organization,  has  signified  the  regular  annual  taxes  paid 
by  Comrades  to  their  Post,  by  the  Posts  to  the  Department,  and 
by  the  Departments  to  the  National  treasury  of  the  Order. 

It  is  never  used  in  our  Regulations  in  any  other  than  in  this 
restricted  and  technical  sense.  For  instance,  take  the  first  Sec 
tion  of  Article  IV,  of  the  same  Chapter:  "Any  Department  in 
arrears  for  reports  or  dues  shall  be  deprived  of  all  representation 
in  the  National  Encampment  until  the  same  are  forwarded." 
Can  it  be  supposed  that  if  a  Department  had  forwarded  its 
reports  and  the  annual  tax  to  National  Headquarters,  and  had 
not  paid  a  bill  for  blanks  furnished,  its  representatives  would 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.     93 


thereby  be  excluded  under  this  Section  from  their  seats  in  the 
National  Encampment?  If  such  had  been  the  intention,  the 
language  wou!4  have  been:  "Any  Department  indebted  to  the 
National  Encampment,  or  whose  reports  have  not  been  duly  for 
warded,  shall,"  etc.  In  Article  IV  of  Chapter  II  there  is  noth 
ing  to  indicate  that  the  word  is  used  in  any  other  sense.  The 
first  Section,  in  providing  for  granting  leaves  of  absence,  says, 
"Provided  he  *  has  paid  in  advance  all  dues  for  the 

time  specified  in  the  furlough.'''  How  can  the  applicant  pay  dues 
for  a  future  time,  unless  such  "  dues  "  are  the  ascertainable  pro 
portionate  part  of  a  sum  fixed  with  regard  to  time?  .1  can  not 
tflink  of  anything  to  which  this  language  can  apply  except  the 
annual  tax. 

It  is  not  likely  that  in  the  very  next  Section  the  framers  of  the 
Regulations  should  have  used  the  word  in  any  different  sense, 
when  it  would  have  been  so  easy  to  specify  a  fee  as  a  second 
condition  to  the  granting  of  the  paper.  The  Judge  Advocate  is 
in  error  in  supposing  that  all  powers  not  specifically  forbidden 
by  the  Regulations  may  be  exercised  by  the  Posts.  The  inten 
tion  of  our  Regulations  is  to  bring  membership  in  the  Grand 
Army  within  the  reach  of  all  honorably  discharged  soldiers  who 
are  not  personally  objectionable.  The  power,  therefore,  of  a 
Post  to  make  compulsory  assessments  upon  its  members  is 
limited  by  Section  3  to  the  levy  of  an  annual  tax.*  This  may  be 
made  sufficient,  in  any  Post,  to  meet  all  its  expenses.  If  it  is 
fixed  at  a  figure  which  is  beyond  the  ability  of  some  of  the 
Comrades,  the  door  must  be  left  open  to  them  to  withdraw, 
without  fee,  to  some  cheaper  Post. 

The  position,  that  a  Comrade,  by  voting  for  a  Post  By- Law 
which  is  in  violation  of  the  Rules  and  Regulations,  may  make  it 
obligatory  upon  him  as  a  contract,  is  subversive  of  all  ideas  of 
the  subordination  of  the  various  organizations  of  the  Order. 
Such  a  By-Law  is  void  ab  initio.  If  it  relates  to  the  payment  of 
money,  the  Comrade  may  fulfill  it  if  he  chooses;  but  the  Post 
is  forbidden  to  enforce  it,  and  money  paid  compulsorily,  under 
its  provisions,  may  be  recovered. 

; — _ . ,_ 

*  Section  3,  Article  III,  Chapter  V,  at  close  of  Opinion  LX,  herein. 


94  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


OPINION  LXIV.     MARCH  16,  1875. 

Post  Commander — Has  no  power  to  pardon.  , 

Court  Martial— Reviewing  officer  may  mitigate  a  sentence — His  action  final. 

Has  a  Post  Commander  power  to  pardon  a  Comrade 
condemned  by  sentence  of  Post  Court  Martial  to  suspen 
sion  for  one  year? 

In  the  absence  of  any  regulation  permitting  the  remission  of  a 
penalty  regularly  ordered,  I  am  of  the  opinion  that  no  such 
power  exists.*  I  think  that  by  military  usage  the  reviewing  offi 
cer!  has  the  power  to  mitigate  a  sentence  when  it  is  sent  up  for 
his  approval,  but  not  after  he  has  once  passed  urxm  it.  His  ac 
tion  then  becomes  final,  and  he  can  not  afterwards  reverse  or 
modify  it.  • 

NOTE— See  Opinions  I,  LVI,  LXXIII,  CV  and  CXLV. 


OPINION  LXV.     JUNE  30,.  1875. 

Commander-in-Chief—  Court  Martial — The  Commander-in-Chief,  in  the  exercise  of  sound  dis 
cretion,  may  refuse  to  order  a  Court  to  try  certain  charges  and  specifications. 
"  Conduct  unbecoming  an  officer  and  gentleman  "—Definition  of. 

The  following  opinion  was  given  upon  a  case  submitted 
to  me  by  the  Commander-in-Chief,  in  which  questions  arose 
in  regard  to  his  powers  and  duties  upon  the  receipt  of  cer 
tain  charges  and  specifications  against  a  Department  Com- 

:  •        -j • 

*The  entire  matter  of  the  finding  and  sentence  of  Court  Martial  is  taken 
out  of  the  hands  of  Post  Commander  by  Rule  4,  Court  Martial,  to  wit: 

4.  The  findings  and  sentences  of  Post  Courts  Martial  shall  be  approved 
by  a  majority  vote  of  said  Post,  subject  to  an  appeal  to  the  Department  Com 
mander.  If  the  sentence  of  any  Post  Court  Martial  shall  be  dishonorable 
discharge  or  dismissal,  if  t approved  by  a  majority  vote  of  the  Post,  the  pro 
ceedings,  findings  and  sentence  shall  be  forwarded  by  the  Post  Commander 
to  the  Department  Commander  (through  the  Assistant  Adjutant-General  of 
the  Department)  for  his  approval.  Such  a  sentence  can  not  be  promulgated 
without  his  approval. 

t  See  Sections  4  and  6,  Article  VI,  Chapter  V,  at  close  of  Opinion  LVI. 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC.  95 


mander  and  another  Comrade,  and  a  request  had  been 
made  to  him  to  order  a  Court  Martial  for  the  trial  of  the 
same. 

The  charges  are : 

First — Violation. of  the  pledge  of  membership. 

Second — The  commission  of  a  scandalous  offense  against 
the  laws  of  the  land. 

7^/iira — Conduct  unbecoming  a  soldier  and  a  gentleman 
in  his  relations  to  the  Grand  Army  of  the  Republic. 

Fourth — Conduct  prejudicial  to  good  order  and  discipline. 

The  specifications  under  the  several  charges  are  identical,  and 
consist  in  the  statement  that  the  accused,  who  are  editors  and 
proprietors  of  a  newspaper,  published  therein  certain  slanderous 
words  concerning  the  Comrade  who  prefers  the  charges,  who 
was  also  editor  of  another  newspaper.  One  of  the  accused  is  a 
Department  Commander,  and  the  accuser  is  an  Assistant  In 
spector-General.  The  words  are  not  technically  actionable  at 
common  law  unless  special  damage  has  ensued,  and  such  a  ques 
tion  can  be  best  decided  in  the  civil  courts. 

They  do  not  constitute  such  a  libel  as  an  indictment  would 
lie  for  in  a  criminal  court  of  any  State  with  whose  laws  I  am 
acquainted,  and  so  can  not  support  the  second  charge. 

As  I  understand  the  third  charge,  it  must  be  interpreted  with 
reference  to  the  universal  construction  put  upon  the  similar  ex 
pression  in  the  Army  Regulations,  "conduct  unbecoming  an 
officer  and  a  gentleman,"  by  all  authorities  in  military  law.  In 
that  view  not  every  ungentlemanly  act  is  meant  by  this  expres 
sion,  but  only  those  acts  of  a  peculiarly  mean  and  dishonorable 
kind,  which  no  one  could  perform  and  still  remain  a  gentleman. 
The  high  penalty  affixed  to  the  crime  by  Army  Regulations— 
"  Cashiering,  without  option  by  the  Court  to  substitute  a  lesser 
punishment" — could  only  be  intended  to  apply  to  the  gravest 
derelictions,  such  as  unfit  a  man  for  the  society  of  gentlemen 
and  make  him  an  outcast  from  society,  and  necessarily  excludes 
from  this  category  mere  impolite  or  ungentlemanly  acts  which 
may  not  proceed  from  a  depraved  character.  If  the  accused 
had  taken  advantage  of  his  position  as -a  Department  Commander 


OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


to  issue  in  orders  to  his  Department  the  injurious  language  which 
he  has  published  in  the  newspaper,  it  might  support  the  charge 
as  showing  such  malignity  as  would  be  inconsistent  with  a  proper 
conception  of  his  position  and  duties.  I  do  not  think  the  lan 
guage,  as  used  in  an  editorial,  can  be  brought  within  the  scope 
of  the  charge. 

The  fourth  charge  is  quite  as  wide  of  the  mark.  Slander  of 
an  Assistant  Inspector-General  by  a  Comrade  not  of  his  Depart 
ment  can  not  materially  affect  the  order  and  military  discipline 
of  the  Grand  Army  of  the  Republic. 

People  do  not  believe  everything  in  the  newspapers,  and  the 
statements  which  make  least  impression  on  the  public  credence 
are  probably  those  which  contain  commendations  of  themselves 
and  abuse  of  their  rivals.  A  newspaper  fight  is  a  contest  in 
which  no  one  is  killed,  and  the  wounded  leave  the  field  in  good 
order. 

The  specification  might  possibly  be  construed  to  support  the 
first  charge.  The  tone  of  the  language  is  very  far  from  that 
which  a  spirit  of  genuine  fraternity  would  prompt. 

Yet,  newspaper  editors,  who  are  personally  very  good  friends, 
do  sometimes  permit  themselves  to  indulge  in  questionable  lan 
guage  of  each  other,  when  the  claims  of  their  respective  organs 
are  at  issue.  It  is  apparent  that  we  are  presented  here  with  one 
portion  of  such  a  discussion.  If  each  had  not  appropriated  the 
name  of  our  Order  for  the  purpose  of  assisting  his  circulation,  I 
think  no  one  would  consider  the  Grand  Army  in  any  way  in 
volved. 

It  seems  to  me  to  be  a  case,  where  the  Commander-in-Chief 
may  exercise  a  sound  discretion  in  refusing  to  order  a  Court  to 
try  these  questions  until  one  of  the  parties  has  shown  a  real  and 
substantial  injury,  by  obtaining  judgment  against  the  other  in  the 
civil  courts. 

If  the  damage  is  real,  it  will  evidently  be  ascertained  by  a  re 
sort  to  tr/e  proper  tribunals,  whether  a  Court  Martial  is  assembled 
to  try  the  case  or  not.  If  the  charges  are  only  preferred  as  a 
move  in  the  contest,  the  interests  of  our  Order  seem  to  me  to 
require  that  we  do  not  lend  its  aid  to  any  such  object. 

NOTE— See  Opinion  CXXIV;  also,  Decision  XIII,  Commander-in-Chief. 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.     97 


OPINION  LXVI.     JULY  30,  1875. 

Post  Commander — Has  no  power  to  suspend  a  member  of  a  Post  against  whom  charges  have 

been  preferred,  before  the  decision  of  the  case. 
Court  Martial  Accused  may  or  may  not  be  present. 
Department  Commander  or  Commander-in-Chief  may  suspend  an  officer  from  discharge  of  his 

official  duties,  but  not  from  rights  as  a  member. 

The  question  is  proposed,  whether  a  Post  Commander 
may  suspend  a  member  of  the  Post  against  whom  charges 
have  been  preferred,  before  the  decision  of  the  case. 

I  agree  with  the  Department  Judge  Advocate  that  he  has  no 
such  power  by  reason  of  charges  preferred. 

The  question  whether  a  Commander  may  not  temporarily 
place  in  arrest  a  Comrade  who  is  disorderly  on  parade  or  in  a 
Post  meeting,  is  not  the  one  under  discussion,  and  this  discrim 
ination,  if  borne  in  mind,  will  assist  in  the  decision  of  the  point 
proposed.  I  think  that  the  fear  of  the  Department  Commander 
that  the  Judge  Advocate's  decision  would  be  subversive  of  dis 
cipline,  arose  from  his  overlooking  this  fact. 

The  object  of  arrest  in  a  criminal  suit,  or  in  the  case  of  charges 
being  preferred  in  military  service,  is  to  secure  the  attendance 
of  the  accused  at  the  trial,  and  that  he  may  be  within  reach  of 
the  sentence.  Obviously,  the  state  of  arrest  is  inconsistent  with 
the  performance  of  duty  by  a  private  soldier,  or  the  exercise  of 
authority  by  an  officer. 

In  our  code  of  discipline  it  makes  no  difference  whether  the 
accused  is  present  at  the  trial  or  not.*  If  he  willfully  absents 
himself  after  notice,  the  Court  may  hear  testimony  and  determine 
the  case  in  his  absence.  We  have  neither  the  power  nor  the 
motive  to  restrain  him  of  his  liberty,  and  the  deprivation  or  sus 
pension  of  his  rights  as  a  member,  which  would  be  the  natural 
result  of  duress,  can  not  be  inflicted  except  from  such  a  necessity. 
The  fact  of  arrest  being  absent,  the  incidents  of  arrest  fail.  As 
the  Judge  Advocate  suggests,  to  suspend  a  Comrade  from  his 
privileges  in  the  Post  because  charges  are  preferred  against  him, 
would  be  to  anticipate  the  judgment  of  the  Court,  and.  to  inflict 


*  See  Opinion  CXLIII. 

7 


98  OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


punishment  upon  a  man  whom  the  law  as  yet  presumes  to  be 
innocent. 

The  case  of  an  officer  is  somewhat  different.  It  might  be,  in 
certain  cases,  improper  for  the  official  duties  of  a  Post  to  be  per 
formed  by  a  person  against  whom  charges  were  pending;  he 
might  even  have  the  official  custody  of  the  proofs  of  his  guilt; 
and  so  the  Regulations  give  the  Department  Commander  or 
Commander-in-Chief  the  power  to  suspend  an  officer  who  is 
accused  of  an  offense  against  the  Regulations  from  the  exercise 
of  his  office.*  The  framers  of  the  Regulations  thought  it  neces 
sary  to  confer  this  power  by  positive  enactment,  and  it  is  to  be 
inferred  that  they  did  not  consider  that  the  preferring  of  charges 
would  give  the  power  by  implication. 

Even  in  the  case  of  an  officer,  the  accused  is  not  suspended 
from  his  rights  as  a  member  of  the  Post,  but  only  from  his  office. 

The  decision  of  the  Post  Commander  should  be  overruled  and 
the  Comrade  restored  from  suspension. 


OPINION  LXVII.     SEPTEMBER  3,  1875. 

Transfer  card— After  presentation  of  a  transfer  card  and  muster  into  a  new  Post,  the  Comrade 

is  a  member  of  the  new  Post. 
Regulations — Require  signing  of  the  By-Laws. 
Transfer  card — Conclusive  on  Post  which  issues  it. 

A  transfer  card  was  granted  T.,  June  8,  which  he  pre 
sented  at  the  organization  of  a  new  Post,  June  9,  and  he 
was  mustered  as  one  of  the  Charter-members.  He  neglected 
to  sign  the  By-Laws  of  the  new  Post,  and  to  attend  its 
meetings  after  the  first  one,  and  on  July  2/th  the  new  Post 
voted  to  return  his  transfer  card  to  his  former  Post,  with  a 
request  to  them  to  withdraw  it. 

After  the  presentation  of  his  transfer  card  and  his  muster  into 
the  new  Post,  as  others  were  mustered,  Comrade  T.  must  be 


*  Section  8,  Article  VI,  Chapter  V.     See  Opinion  XLVI. 


OF   THE    GRAND    ARMY   OF   THE    REPUBLIC.  99 


considered  a  member  of  the  new  Post.  The  Regulations  imply 
that  all  members  shall  sign  the  By-Laws  within  a  reasonable  time, 
but  no  specific  time  is  mentioned.*  He  may  therefore  sign  now, 
and  complete  his  membership.  A  transfer  card  is  generally  con 
clusive  upon  the  Post  which  issues  it,  except  in  case  of  fraud. 


OPINION  LXVIII.     OCTOBER   14,  1875. 

Court  Martial  -  When  the  members  of  the  Court  are  of  different  rank  the  senior  officer  will 

preside. 
Department  Commander  may,  when  all  are  of  the  same  rank,  designate  who  shall  preside. 

A  Department  Commander  ordered  a  General  Court  Mar 
tial,  composed  wholly  of  Post  Commanders,  and  named  one 
of  them  President.  Another  member  of  the  Court  protests 
against  the  appointment  of  the  President  by  the  Depart 
ment  Commander,  taking  the  ground  that  the  senior  officer 
detailed  must  preside,  and  asks,  What  determines  rank  in 
the  Grand  Army? 

The  Department  Commander  assumes  that  all  the  officers  of 
the  Court  were  of  equal  rank,  and  hence  necessarily  that  a  choice 
must  be  made  by  him. 

If  such  were  the  fact,  inasmuch  as  no  army  precedent  could 
be  adduced,  and  our  Regulations  do  not  provide  for  such  a  case, 
I  should  hold  that  he  assumed  a  convenient  and  necessary  power. 
The  only  other  admissible  alternative  would  seem  to  be  to  direct 
the  members  to  draw  lots  for  temporary  seniority ;  but  to  direct 
the  Court  how  to  select  their  President  would  be  exercising  an 
authority  very  nearly  the  same  as  to  select  him  at  once,  and  would 
be  substituting  a  cumbrous  proceeding  for  a  direct  and  certain 
action. f 


*  Section  8,  Article  II,  Chapter  II.     See  Opinion  V. 

f  As  to  the  President  of  Post  Court  Martial,  see  Rule  5,  Court  Martial,  at 
close  of  Opinion  XXXVI. 


100          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


When  a  commanding  officer  exercises  a  discretionary  power 
which  falls  upon  him  from  the  necessities  of  an  unanticipated 
case,  he  can  only  be  held  to  the  exercise  of  his  best  judgment; 
and  if  he  does  not  on  the  moment  select  the  course  which  on 
mature  reflection  would  seem  most  wise,  yet,  having  acted  in 
good  faith,  he  will  be  sustained. 

If,  on  the  other  hand,  the  members  of  a  Court  are  of  different 
rank,  the  army  regulations  must  be  our  guide  and  the  senior 
officer  will  preside. 

I  do  not  know  that  we  have  any  means  of  deciding  questions 
of  seniority  between  two  Grand  Army  officers  of  the  same  official 
grade,  unless  we  follow  the  analogy  of  the  service,  and  decide  in 
favor  of  the  one  who  has  been  longest  in  office.  But,  between 
two  Post  Commanders,  who  are  elected  for  the  first  time  in  the 
same  December,  and  installed  at  the  next  stated  meetings  of  their 
respective  Posts,  though  one  Post  should  hold  its  meeting  earlier 
in  the  month  than  the  other,  I  do  not  see  that  any  distinction  can 
justly  be  made. 

Upon  this  point,  as  upon  all  similar  ones  which  must  be  de 
cided  somewhat  arbitrarily,  I  conceive  that  any  rule  established 
by  the  Commander-in-Chief  would  be  acquiesced  in  as  correct ; 
and  until  some  uniform  rule  is  adopted,  the  decision  of  the  De 
partment  Commander  in  his  own  jurisdiction  must  stand. 


OPINION  LXIX.     OCTOBER  14,  1875. 

Eligibility  to  Membership — Depends  upon  whether  or  not  the   applicants  can  present  honor 
able  discharges. 

It  is  stated  that'certain  applicants  for  membership  in  the 
Grand  Army  were  reported  upon  their  regimental  returns 
in  the  army  as  deserters,  having  been  unavoidably  detained 
on  furlough  longer'than  their  allotted  time,  and  the  ques 
tion  is  asked,  Are  these  men  eligible? 


OF   THE   GRAND    ARMY   OF   THE   REPUBLIC.          101 


The  same  question  arises  in  the  case  of  T.  J.,  who  has 
been  mustered  into  a  Post  of  the  Grand  Army,  but  is  after 
wards  discovered  to  be  recorded  in  the  State  roll  of  volun 
teers  as  a  deserter. 

The  question  must  be  answered  by  ascertaining  whether  the 
candidates  can  present  honorable  discharges.  If  so,  notwith 
standing  the  fact  of  a  technical  violation  of  military  law,  they  are 
eligible  to  be  balloted  for  as  candidates.  The  members  of  Posts, 
by  their  votes,  will  decide  whether  the  offense  committed  in 
each  case  was  of  such  a  nature  as  to  prove  the  applicant  un 
worthy  to  be  received  among  true  soldiers.  If  they  have  not 
honorable  discharges  from  the  army  they  are  not  eligible  to  be 
voted  for. 

In  the  case  of  T.  J.  the  same  rule  holds.  If  he  presented  an 
honorable  discharge  he  is  properly  elected,  and  the  Post  can  not 
invalidate  its  action ;  if  he  did  not  have  such  a  discharge  he 
must  be  dropped,  and  the  Post  is  deserving  of  severe  censure  for 
not  requiring  it  before  the  ballot. 

I  would  refer,  also,  to  the  case  discussed  in  Opinion  LIV,  July 
19,  1873. 


OPINION  LXX.     DECEMBER  30,  1875. 

National  and  Department  Encampments — Members — Must  be  in  good  standing  in  tbeir  Posts. 

The  question  is  proposed  whether  a  Past  Department 
Commander,  whose  connection  with  the  Grand  Army  of 
the  Republic  has  been  severed  by  the  disorganization  of 
the  Department  and  Post  to  which  he  belonged,  regains 
his  privileges  as  such  Past  officer  on  again  becoming  a 
member  of  his  Post  in  good  standing. 


102          OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


The  question  is  upon  the  construction  of  the  provisions  of  Sec 
tion  i,  Article  II,  Chapter  III,*  and  Section  i,  Article  II,  Chap 
ter  IV,  Rules  and  Regulations.! 

I  think  the  words  "so  long  as  they  remain  in  good  standing 
in  their  several  Posts"  apply  to  all  Past  Department  Command 
ers  who  are  not  at  the  time  under  any  disability  to  act  as  mem 
bers  of  their  Post,  and  that  they  may  sit  as  members  of  the  De 
partment  and  National  Encampments. 

If  such  officer  asks  to  be  admitted  to  a  seat  the  question  is : 
Is  he  in  good  standing  in  his  Post?  If  so,  he  should  be  admitted. 


OPINION  LXXI.     DECEMBER  20,  1875. 

Eligibility  to  Membership— One  who  enlisted  in  the  United  States  army  June  29,  1875,  is  eligi 
ble  to  membership. 

An  applicant  for  membership  in  the  Grand  Army  of  the 
Republic,  enlisted  in  the  United  States  army,  Company  F, 


*  See  Article  II,  Chapter  III,  at  close  of  Opinion  XVIII. 

t  SECTION  i,  ARTICLE  II,  CHAPTER  IV. 

MEMBERSHIP. 

SECTION  I.     The  National  Encampment  shall  be  composed — 

First — Of  the  Commander-in-Chief,  Past  Commanders-in-Chief  and  Past 
Vice-Commanders-in-Chief,  so  long  as  they  remain  in  good  standing  in  their 
respective  Posts,  and  the  other  officers  named  in  Section  2,  Article  IV,  of 
this  Chapter. 

Second — Of  the  Commanders,  Vice-Commanders  and  Assistant  Adjutant- 
Generals  of  the  several  Departments,  and  the  Commander  and  Assistant 
Adjutant-General  of  each  Provisional  Department  for  the  time  being  (for 
whom  no  proxy  or  substitute  can  act) . 

Tkird — Of  Past  Department  Commanders  who  have  served  for  a  full  term 
of  one  year,  or  who,  having  been  elected  to  fill  a  vacancy,  shall  have  served 
to  the  end  of  the  term,  so  long  as  they  remain  in  good  standing  in  their 
Posts;  and, 

Fourth — Of  one  Representative-at-Large  from  each  Department,  and  one 
Representative  for  each  one  thousand  members  in  good  standing  therein, 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC.          103 


Twenty -third   United   States   Infantry,  June   29.   1865,  and 
was  honorably  discharged  by  reason  of  the  expiration  of 
his  term  of  enlistment,  June  29,   1868. 
Is  he  eligible  to  membership? 

The  question  depends  upon  whether  the  applicant  served  in 
the  army  of  the  United  States  during  the  late  Rebellion. 

I  suppose  that  the  exact  locality  of  service  in  the  army  of  the 
United  States  can  not  be  taken  by  any  one  as  a  criterion  of  ser 
vice  in  the  suppression  of  the  Rebellion.  Those  parts  of  the 
army  that  were  garrisoned  in  forts  in  the  Northern  States,  out  of 
reach  of  the  enemies'  guns,  formed  an  essential  part  of  our 
force,  and  as  truly  served  as  if  they  had  been  in  front  of  the 
conflict;  and  this  service  continued  until  the  last  portion  of 
Rebel  territory  was  reclaimed.  The  question  of  the  duration  of 
the  Rebellion  is  the  only  one  requiring  attention. 

Upon  this  point  we  have  the  decisions  of  the  Executive,  Leg 
islative  and  Judicial  Departments  of  the  Government.  The 
President  issued  his  proclamation  April  19,  1861,  recognizing 
the  existence  of  rebellion  in  South  Carolina,  Georgia,  Alabama, 
Florida,  Mississippi,  Louisiana  and  Texas.  Congress  and  the 
Supreme  Court  of  the  United  States  have  accepted  this  date  as 
the  commencement  of  the  war.  The  Protector,  12  Wallace, 
700 ;  United  States  v.  Anderson,  9  Wallace,  36.  On  the  2d  of 
April,  1866,  the  President  issued  his  proclamation,  announcing 
that  the  Rebellion  was  terminated  in  the  States  of  Virginia, 
North  Carolina,  South  Carolina,  Georgia,  Florida,  Mississippi, 
Tennessee,  Alabama,  Louisiana,  Arkansas ;  and  finally,  on  the 
2oth  of  August,  1866,  his  proclamation,  declaring  that  the  Rebel 
lion  was  ended  in  "Texas,  and  peace  restored  throughout  all  the 
United  States. 

Congress  recognized  the  declarations  as  fixing  the  period  of 
the  Rebellion  by  many  enactments,  and  the  Supreme  Court,  in 

and  one  additional  Representative  for'a  final  fraction  of  more  than  one-half 
of  that  number,  such  Representatives  to  be  elected  by  the  Department  En 
campment,  as  provided  in  Article  IX,  Chapter  III.  Any  Department  having 
less  than  one  thousand  members,  and  more  than  five  hundred,  shall  be  en 
titled  to  one  Representative  in  addition  to  one  Representative-at-Large. 


104          OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


the  cases  above  referred  to  declare  that  the  first  official  declara 
tion  we  have  on  the  part  of  the  Executive  that  the  Rebellion 
was  wholly  suppressed  is  in  the  President's  proclamation  of 
August  20,  1866;  and  hold  that  the  war  began  and  ended 
according  to  the  declaration  of  the  several  proclamations 
referred  to.  These  decisions  have  been  followed  in  Phillips  v. 
Hatch,  i  Dillon,  Cr.  Ct.  Rep.  5,  71,  and  other  cases  which  it 
is  unnecessary  to  refer  to.  It  is,  then,  settled  that  the  late  Rebel 
lion  began  April  19,  1861,  and  finally  ended  August  20,  1866. 

The  applicant  served  in  the  army  of  the  United  States  during 
that  period,  and  was  honorably  discharged,  and  is  eligible.* 


OPINION  LXXII.     MARCH  22,  1876. 

1.  Eligibility  to  Membership — An  applicant  rejected  by  one  Post,  and  who,  before  the  expira 

tion  of  the  time  fixed  by  the  Regulations,  applies  for  membership  and  is  there  elected 
and  mustered,  is  illegally  elected  and  mustered  and  should  be  dropped  from  the  rolls. 

2.  Two  things  are  necessary  to  become  a  member  of  the  Grand  Army:     Eligibility  to  member 

ship  under  the  Regulations,  and  he  must  be  duly  elected. 

3.  Regulations — The  National  Encampment  alone  has  power  to  alter  or  amend. 

4.  A  member  once  admitted,  though  unfit,  can  not  be  stricken  from  the  rolls  except  for  some 

subsequent  misconduct. 

5.  Acting  within  the  Regulations,  the  muster  of  a  recruit  would  conclude  the  Post  on  all  ques 

tions  left  by  the  Regulations  to  the  Post. 

F.  C.  F.  applied  for  admission  to  Post  32,  of  Depart 
ment  of  Massachusetts,  and  was  rejected.  He  then 
applied  to  Post  82,  and  was  accepted  without  the  consent 
of  Post  32.  He  did  not  state  in  his  application  to  Post  82 
that  he  had  made  a  previous  application.  From  Post  82 
he  was  regularly  transferred  to  Post  125,  and  the  fact 
transpiring  that  he  had  been  improperly  admitted  to  Post 
82,  he  was  dropped  as  never  having  been  a  member  of  the 

*  The  time  of  service  which  renders  a  soldier  eligible  to  membership  is 
now  fixed  by  the  Rules  and  Regulations,  so  that  it  must  have  been  between 
April  12,  1861,  and  April  9,  1865.  See  Article  IV,  Chapter  I,  at  close  of 
Opinion  IV. 


OF   THE   GRAND    ARMY    OF   THE    REPUBLIC.          105 


Grand  Army  of  the  Republic.  •  The  Department  Com 
mander  sustained  the  action  of  Post  125,  holding  that  the 
initiate  fraud  or  error  vitiated  the  subsequent  proceedings. 
From  this  decision,  embodied  in  General  Orders  No.  6, 
Headquarters  Department  of  Massachusetts,  October  27, 
1875,  Paragraph  3,  F.jC.  F.  appeals. 

The  provision  of  Chapter  II,  Article  II,  Section  5,*  of  the 
Rules  and  Regulations,  that  a  rejected  candidate  shall  be  forever 
after  ineligible  for  admission  to  any  other  Post  of  the  Grand 
Army  of  the  Republic  without  the  consent  of  a  two-thirds  vote 
of  the  Post  rejecting  him,  is  in  terms  absolute  and  unqualified. 

Can  a  Post,  by  its  action  or  omission,  waive  the  application 
of  the  rule  in  a  particular  case?  The  appellant  claims  that  Post 
82  did  so,  because  one  of  its  members  informed  him  that  he 
need  not  comply  with  the  Regulations.  The  principle  of  the 
organization  of  our  Order  is  subordination  of  Posts  to  Depart 
ments,  Departments  to  the  National  Encampment,  and  the  whole 
Order  to  written  regulations,  which  form  our  Constitution. f 

*  See  Opinion  LIII. 

f  PREAMBLE  TO  RULES  AND  REGULATIONS: 
We,  the  soldiers  and  sailors,  and  honorably  discharged  soldiers  and  sail 
ors  of  the  army,  navy,  and  marine  corps  of  the  United  States,  who  have 
consented  to  this  union,  having  aided  in  maintaining  the  honor,  integrity, 
and  supremacy  of  the  National  Government  during  the  late  Rebellion,  do 
unite  to  establish  a  permanent  association  for  the  objects  hereinafter  set 
forth ;  and  through  our  National  Encampment  do  ordain  and  establish  the 
following  Rules  and  Regulations  for  the  government  of  this  association. 

ARTICLE  X,  CHAPTER  II. 

BY-LAWS. 

Posts  may  adopt  By-Laws  for  their  government,  not  inconsistent  with  these 
Rules  and  Regulations  or  the  By-Laws  or  Orders  of  the  National  or  Depart 
ment  Encampments,  and  may  provide  for  the  alteration  or  amendment 
thereof. 

ARTICLE  X,  CHAPTER  III. 

BY-LAWS. 

Department  Encampments  may  adopt  By-Laws  for  the  government  of  the 
Department,  not  inconsistent  with  these  Rules  and  Regulations  or  the  By- 


106          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 

These  Regulations  can  only  be  altered,  amended,  suspended, 
or  repealed  by  the  National  Encampment,  not  by  Posts,  whose 
powers  are  limited  by  the  Regulations  themselves.  Nor  can  any 
Comrade,  on  behalf  of  the  Post,  lawfully  do  what  the  Post  itself 
has  not  the  right  to  do. 

The  applicant,  therefore,  was  not  lawfully  proposed  and 
elected.  But  the  case  involves  the  further  question,  how  far  the 
unlawful  act  is  void. 

Two  things  are  necessary  for  the  admission  of  a  canidate  to 
the  Grand  Army.  He  must  be  eligible  to  membership  under 
the  express  provisions  of  the  Regulations,  and  he  must  be  elected 
by  a  duly  authorized  body.  If  not  eligible,  the  Post  has  not  the 
right  to  muster  him,  though  they  may  unanimously  vote  to  admit 
him.  Certain  general  qualifications  are  stated  in  the  Regula 
tions  ;  the  peculiarities  of  character  of  the  applicant  are  left  to 
the  investigation  of  the  committee  and  the  decision  of  the  ballot. 
If  an  applicant  who  comes  within  the  general  requirements  of  the 
Regulations  is  elected  by  a  Post,  and  it  is  afterwards  discovered 
that  he  has  been  guilty  of  crime,  or  is  of  such  a  temper  and  dis 
position  as  to  unfit  him  for  the  society  of  gentlemen,  the  action 
of  the  Post,  as  a  general  rule,  must  stand,  because  they  have 
decided  the  matter  which  lay  in  their  discretion. 

Even  in  this  case,  if  the  Post  acted  on  mistaken  information, 
and  it  was  discovered  before  muster,  their  action  might,  in  some 
circumtsances,  be  reversed.  See  Opinion  LVII,  October  29, 
1873.  In  such  a  case  the  Comrade,  if  once  mustered,  though 

Laws  or  orders  of  the  National  Encampment,  and  may  provide  for  the  alter 
ations  and  amendment  thereof. 

ARTICLE  XV,  CHAPTER  V. 

ALTERATIONS    AND    AMENDMENTS.* 

The  Rules  and  Regulations,  and  the  Ritual  of  the  Grand  Army  of  the 
Republic,  shall  only  be  altered  or  amended  by  the  National  Encampment, 
by  a  two-thirds  vote  of  the  members  present  at  a  regular  annual  meeting 
thereof.  But  any  Section  herein  may  be  suspended,  for  the  time  being,  at 
any  annual  meeting  of  the  National  Encampment,  by  a  unanimous  vote. 

*Proposed  amendments  to  Rules  and  Regulations  must  be  presented  to  the  Adjutant  General 
in  time  to  furnish  each  member  a  copy  at  least  thirty  days  before  the  annual  Encampment. 
Resolution,  Encampment  June  18,  1879. 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC,          107 


unfit  for  membership,  would  remain  a  member  and  could  not  be 
stricken  from  the  roll  except  for  some  subsequent  offense.  In 
brief,  I  should  hold  that  the  muster  of  a  recruit  would  conclude 
the  Post  upon  all  questions  left  by  the  Regulations  to  the  Post  to 
decide. 

In  the  present  case,  the  Post  have  not  acted  injudiciously 
upon  a  question  submitted  to  them,  but  they  have  taken  juris 
diction  where  the  Regulations  give  them  none.  Their  action  in 
this  'case  was  required  to  be  concurrent  with  that  of  the  Post 
which  first  rejected  the  candidate. 

If  they  had  the  means  of  knowing  the  fact  of  the  previous  re 
jection,  as  it  seems  they  should  have  had  in  their  files  of  General 
Orders,  or  by  insisting  upon  the  proper  filling  of  the  blanks  in 
the'application,  they  were  guilty  of  carelessness  and  disregard  of 
their  obligations  of  the  Order.  Yet  they  can  not  bind  the  Order, 
of  which  they  form  a  part,  or  waive  the  rights  of  Post  32,  to  whose 
jurisdiction  the  candidate  first  voluntarily  subjected  himself. 

The  action  of  the  Post,  therefore,  in  admitting  the  appellant 
was  void,  and  the  National  Encampment  only  can  provide  any 
remedy  for  the  case.  If  it  were  an  instance  where  the  vital 
interests  of  the  Order  were  at  stake,  it  may  be  that  the  Com- 
mander-in-Chief,  in  the  intervals  between  the  sessions  of  the  En 
campment,  might  assume  the  power  to  act.  But  it  is  not  appar 
ent  that  any  such  pressing  necessity  exists,  either  arising  from  an 
equitable  regard  for  the  position  of  the  appellant  or  from  the 
interests  of  the  Grand  Army  involved. 

i.  The  candidate  was  furnished  with  a  blank  form  of  appli 
cation,  containing  a  statement  of  the  fact  whether  or  not  he  had 
made  previous  application  for  membership,  and  had  no  right  to 
rely  upon  the  unofficial  statement  of  his  friend,  that  he  might 
suppress  the  fact  of  his  previous  rejection.  Common  prudence 
would  have  led  him  to  read  the  Regulations  of  a  society  which 
he  intended  to  join  when  those  Regulations  were  open  to  his  free 
inspection.  His  familiarity  with  the  rules  of  other  secret  soci 
eties  shown  in  his  argument  must  have  taught  him  that  his  rejec 
tion  by  a  local  organization  was  a  material  fact  which  could  not 
be  without  influence  in  the  action  on  his  second  application,  and 
that  the  printed  form  for  such  a  statement  could  not  be  a  dead 


108          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


letter.  The  dropping  of  his  name  from  our  rolls  can  throw  no 
imputation  upon  his  character  beyond  what  is  necessarily  inferred 
from  his  own  acts.  He  may  make  a  new  application  to  any 
Post,  and.  with  the  consent  of  Post  32,  may  be  regularly  elected 
and  mustered. 

2.  Our  organization  differs  in  many  respects  from  other  secret 
societies.  Our  Regulations  expressly  recognize  the  termination 
of  membership  in  the  Order,  either  voluntarily,  by  honorable 
discharge,  by  neglect,  or  by  sentence  of  Court  Martial.  There 
are,  therefore,  many  men  not  now  members  of  the  Grand  Army, 
who  have  been  Comrades,  and  who  have  filled  high  and  impor 
tant  offices  in  the  Order.  The  addition  of  one  name  to  the  list 
does  not  seem  to  be  likely  to  affect  the  interests  of  the  Order  to 
such  an  extent  as  to  warrant  an  arbitrary  suspension  of  the  Reg 
ulations. 

It  is  suggested  that  the  appellant  has  acted  as  a  Post  officer, 
and  it  is  apprehended  that  if  it  is  decided  that  he  has  never  been 
lawfully  a  member,  his  official  acts  must  be  declared  void. 

I  do  not  understand  this  to  be  the  law.  The  only  practicable 
rule  to,  adopt  in  such  cases  is  to  consider  the  acts  of  a  tie  facto 
officer,  so  far  as  they  were  lawful  in  themselves,  as  of  the  same 
force  and  effect  as  if  performed  by  one  holding  the  office  de  jure. 

On  the  other  hand,  unless  the  illegal  act  of  the  Post  in  this 
case  is  held  void,  there  is  no  possible  mode  of  enforcing  the 
Regulation.  Either  this  Regulation,  and  all  others  relating  to  the 
eligibility  of  candidates,  are  void  (for  there  is  no  punishment 
provided  for  their  violation),  or  else  an  act  done  contrary  to 
them  is  void  ab  initio,  and  when  discovered  must  be  so  declared. 

I  think  the  appeal  must  be  dismissed. 


OPINION  LXXIII.     MAY   10,  1876. 

Court  Martial — If  the  sentence  of  Court  Martial  is  inadequate,  in  the  opinion  of  the  reviewing 

officer,  he  may  send  back  for  revision. 
Appeal — If  the  reviewing  officer  has  already  passed  upon  the  sentence,  there  is  no  remedy. 

A  Post  tries  a  Comrade  by  Court  Martial.      His  offense 
is  a  grave  one,  and  deserves  the  utmost  punishment  in  the 


OF   THE    GRAND    ARMY   OF   THE    REPUBLIC.          109 

power  of  the  Court  to  inflict.  The  Comrade  pleads  guilty, 
and  the  sentence  of  the  Court  is  merely  nominal — entirely 
disproportioned  to  the  offense.  Can  the  Department  Com 
mander  order  the  case  to  be  reviewed  by  the  Court?  Is 
there  any  remedy? 

If  the  sentence  of  a  Court  Martial  is  inadequate,  in  the  opin 
ion  of  the  reviewing  officer,  he  may  send  back  the  proceedings 
for  revision  before  the  Court  is  dissolved,  stating  his  reasons  and 
views  to  the  Court.  If  they  still  adhere  to  their  sentence,  he  is 
powerless — except  to  disapprove  the  sentence  or  to  order  the 
execution  of  it. 

This  power  is  implied  in  words  "orders  in  the  case,"  occur 
ring  in  our  Rules  and  Regulations,  Chapter  V,  Article  VI,  Sec 
tion  6,*  where  they  are  quoted  from  the  Sixty-fifth  Article  of 
War;  or,  perhaps,  it  is  a  power  directly  flowing — to  use  the 
words  of  Mr.  Benet — from  the  very  constitution  of  courts,  as  a 
consequence  of  the  right  of  confirming  and  disproving  the  sen 
tence  ;  at  any  rate,  it  has  been  fixed  by  custom,  and  is  the  estab 
lished  practice  in  the  United  States  service. 

The  mode  of  procedure  on  revision  is  stated  fully  in  Chapter 
XIII  of  Benet's  Law  and  Practice  of  Courts  Martial,  which  will 
be  accessible  to  and  should  be  consulted  by  the  Judge  Advocate 
of  the  Court — see  page  146  et  seq. ,  also  De  Hart's  Military  Law, 
page  204  ef  seq. ,  to  the  same  effect. 

If  the  reviewing  officer  has  already  passed  upon  the  sentence 
there  is  no  remedy?! 


OPINION  LXXIV.     AUGUST  29,  1877. 

Applicant— Grade— One  who  was  mustered  as  a  recruit  under  the  grade  system  must  proceed  as 
an  original  applicant. 

C.  A.  P.  was  mustered  as  a  recruit,  September  20,  1870, 
under  the  grade  system,  was  never  advanced  to  the  higher 
grades,  and  never  took  the  obligation  of  veteran,  after  the 


*  Article  VI,  Chapter  V.     See  Opinion  LVI. 
tSee,  also,  Opinions  LVI,  LXIV,  CV,  CXLV. 


110          OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


grades  were  abolished,  but  was  carried  on  the  rolls  of  the 
Post  until  the  Post  surrendered  its  Charter.  He  never 
paid  any  dues  other  than  the  fee  for  muster  as  a  recruit 
(five  dollars).  He  now  wishes  to  join  another  Post.  Now, 
can  he  legally  be  brought  into  the  Order? 

On  the  foregoing  statement  I  am  of  the  opinion  that  C.  A.  P. 
can  only  be  brought  legally  into  the  Order  by  applying  de  novo, 
that  is  by  making  an  original  application,  and  proceeding  as  if 
he  were  a  new  recruit.*  I  find  no  previous  Opinion,  Rule  or 
Regulation  to  aid  me  in  this  case ;  but  upon  general  principles 
it  would  seem  that  any  regard  for  the  spirit  or  intent  of  the  Rules 
and  Regulations  governing  the  Order,  would  require  much  more 
from  C.  A.  P.  than  he  has  yet  performed.  Nearly  seven  years 
ago,  under  the  grade  system,  he  was  mustered  as  a  recruit 
under  that  system.  He  never  elected  to  proceed  further.  When 
that  system  was  abolished  he  neglected  to  take  the  regulation  of 
veteran ;  he  never  paid  any  dues,  except  the  fee  required  for 
proceeding  as  far  as  he  went ;  the  fact  that  he  was  carried  on  the 
rolls  of  the  Post  all  the  while  amounts  to  nothing ;  he  should  not 
have  been ;  and  now  that  the  Post  has  surrendered  its  Charter,  I 
am  clearly  of  opinion  that  he  should  proceed  as  an  original 
applicant. 


OPINION  LXXV.      AUGUST  29,  1877. 

Dropped  members  can  not  be  regarded  as  dishonorably  discharged  members. 
Dishonorably  discharged  members  are  such  as  have  been  convicted  and  sentenced  by  Court 
Martial. 

Certain  members  dropped  from  the  rolls  for  non-pay 
ment  of  dues.  Can  such  members  be  regarded  as  "dis 
honorably  discharged?" 


*  Such  cases  are  governed  by  Section  10,  Article  II,  Chapter  II,  set  out 
at  close  of  Opinion  V,  herein. 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC.  Ill 


Section  3,  Article  IV,  Chapter  V,  of  the  Rules  and  Regula 
tions,  1877,*  is  clear  and  explicit  that  any  member  in  arrears  in 
the  payment  of  his  dues  is  to  be  reported  only  as  "suspended." 
And  Section  4  of  the  same  Article  is  equally  clear  and  explicit 
that  any  member  in  arrears  for  a  year  shall  be  "dropped  from 
the  rolls,"  and  of  course  so  reported. 

In  my  judgment  only  those  members  convicted  (and  sen 
tenced)  under  a  Court  Martial  of  one  of  the  five  offenses  named 
in  Section  i,  Article  VI,  of  said  Chapter,  can  be  regarded  or  re 
ported  as  "dishonorably  discharged  ;"  therefore  I  am  of  opinion 
that  Comrades  dropped  from  the  rolls  for  non-payment  of  dues 
can  not  be  regarded  or  reported  as  "dishonorably  discharged." 


OPINION  LXXVI.     OCTOBER   18,  1877. 

1.  Department  Commander — When  information  is  given  the  Department  Commander  charging 

that  an  election  of  Post  Commander  is  illegal,  then  he,  the  Department  Commander,  may 
issue  an  order  postponing  the  installation  until  investigation  is  had — And  it  makes  no  dif 
ference  how  the  information  was  given  to  Department  Commander. 

2.  Qualifications — A  Commander-elect  is  not  disqualified  from  assuming  the  duties  of  his  office 

by  reason  of  any  suspicions  against  his  integrity  as  a  Quartermaster. 

The  case  contained  in  a  communication  to  the  Com- 
mander-in-Chief  from  Headquarters  Department  of  New 
York,  dated  October  10,  1877  (to  which  reference  ma)'  be 
had),  stated  briefly  is  as  follows  :  A  Quartermaster,  whose 
accounts  were  being  investigated  by  a  committee  of  his 
Post,  is  elected  Commander  of  his  Post,  to  fill  a  vacancy, 
at  a  meeting  to  be  called  for  that  purpose ;  at  which  »meet- 
ing,  and  before  proceeding  to  an  election,  an  order  is 
passed  remitting  the  dues  of  all  Comrades  in  arrears,  and 
by  a  vote  of  the  Post  "the  second  meeting  following  "  is 


*  See  Section  3,  Article  IV,  Chapter  V,  at  close  of  Opinion  III,  herein. 
See  Section  4,  Article  IV,  Chapter  V,  at  close  of  Opinion  XXXV,  herein. 
See  Section  I,  Article  VI,  Chapter  V,  at  close  of  Opinion  I,  herein. 


112         OPINIONS    OF    JUDGE   ADVOCATES-GENERAL 


fixed  as  the  time  for  installation ;  and  at  the  meeting  next 
following  the  election  a  vote  is  passed  giving  said  committee 
until  one  week  after  installation  to  report ;  when  a  paper 
setting  forth  above-mentioned  facts,  signed  by  certain  mem 
bers  of  the  Post,  claiming  that  the  "election  was  irregular 
and  fraudulent  and  ought  not  to  stand,"  and  asking  that  a 
committee  to  investigate  said  election  may  be  appointed, 
is  forwarded  to  Department  Headquarters.  Whereupon 
from  said  Headquarters  an  order  is  issued  postponing  the 
installation  and  appointing  such  committee ;  the  installa 
tion  is  postponed  ;  the  Commander  elect  protests  against 
said  order  as  illegal  and  void,  on  the  ground  that  the 
"appeal  (meaning  the  paper  heretofore  alluded  to)  is  not 
in  regular  form"  and  did  not  go  "through  proper  chan 
nels,"  asks  that  said  order  be  revoked,  and  the  following 
questions  are  referred  to  the  Judge  Advocate-General  for 
opinion,  to  wit : 

First — If  the  order  referred  to  above  should  be  rescinded? 

Second — If  this  Quartermaster  is  competent  in  any  event 
to  be  installed  as  Commander  while  yet  his  Quartermaster's 
accounts  are  unsettled,  and  before  he  has  been  formally 
released  by  the  Post? 

i.  If  by  the  first  question  is  meant,  Is  the  order  a  valid  one? 
I  am  of  opinion  that  the  validity  of  the  order  of  the  Department 
Commander  in  this  case  is  not  affected  by  the  manner  in  which 
said  paper  or  appeal  was  forwarded  to  Headquarters  (and  how  it 
was  forwarded  don't  appear),  for  the  Department  Commander 
had  a  right  to  order  such  investigation  if  he  believed  it  for  the 
best  interests  of  the  Order  or  his  duty  upon  ascertaining  the 
facts,  no  matter  by  what  means  obtained,  or  even  upon  sus 
picion  of  the  facts,  without  any  communication  on  paper  what 
ever.  This  paper  may  have  been  irregularly  forwarded  ;  and,  if 
so,  it  should  have  been  returned  with  such  reprimand  or  direc 
tions  for  punishment  as  the  Commander  of  the  Department  saw 
fit,  if  any.  Or  the  Post  might  take  proper  steps  to  punish  such 


OF    THE    GRAND    ARMY    OF    THE    REPUBLIC.          113 


infraction  of  the  rules  if  it  was  considered  of  sufficient  impor 
tance,  but  it  clearly  does  not  invalidate  the  order  of  the  Depart 
ment  Commander.  There  is  no  provision  in  the  Rules  and  Reg 
ulations  for  the  appointment  of  investigating  committees  by  De 
partment  Commanders,  but  I  am  of  opinion  that  such  power  may 
safely  be  inferred  from  the  undefined  general  powers  which  such 
executive  and  administrative  officers  must  necessarily  have,  and 
that  this  will  not  be  disputed.  If  the  question  is  meant  to  be 
construed  literally,  to-wit,  Should  the  order  be  rescinded?  then 
I  answer  that  the  question  is  wholly  one  of  policy  or  expediency, 
and  is  to  be  decided  only  by  the  authority  from  which  it  ema 
nated. 

2.  I  am  of  the  opinion  further  that  this  Quartermaster  or 
Commander-elect  is  not  disqualified  from  being  installed  by  rea 
son  of  any  suspicions  against  his  integrity  as  a  Quartermaster, 
or  by  reason  of  the  appointment  or  proceeding  of  any  committee 
to  investigate  his  conduct.  Committees  of  investigation  are 
always  proper  and  sometimes  necessary,  but  no  direct  effect 
results  from  their  appointment,  investigation  or  reports.  It  is 
the  order  from  the  proper  authority,  or  the  Court  Martial  which 
follows,  that  produces  the  direct  effect.  The  remedy  for  wrong 
doing  on  the  part  of  a  Comrade  is  simple  and  direct,  i.  c. — by 
a  Court  Martial,  on  charges  preferred,  and  when  charges  are 
preferred  against  an  officer  of  a  Post,  the  Department  Com 
mander  may  suspend  the  accused  from  office.* 

The  case  itself  presents  other  interesting  questions,  but  I  have 
confined  myself  to  the  questions  propounded,  and  it  will  be 
noticed  that  in  answering  the  second  question  I  purposely 
avoided  the  consideration  of  the  effect  of  any  action  upon  an 
unfavorable  report  from  the  Committee  of  Investigation  into  the 
election  appointed  by  Department  Headquarters. 


*See  Section  3,  Article  VI,  Chapter  V,  at  close  of  Opinion  XLVI.    Also, 
Section  8,  same  Article  and  Chapter.     See  Opinion  XLVI. 

8 


114          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


OPINION  LXXVII.     OCTOBER  24,  1877. 

Commander-in-Chief  can  not  grant  a  "  Roving  Charter." 
Posts  must  be  located. 

Certain  members  of  the  Grand  Army  of  the  Republic 
belonging  to  the  regular  army  request  a  Charter  for  a  Post, 
independent  of  any  department,  the  Charter  to  operate  and 
the  Post  to  be  located  in  any  State  where  the  regiment  to 
which  they  belong  may  be  stationed  for  the  time  being,  or 
in  other  words  that  they  may  be  granted  a  "  Roving  Char 
ter,"  and  the  question  is  asked:  Has  the  Commander- 
in-Chief  the  right  to  grant  such  request? 

Article  III,  Chapter  I,  Rules  and  Regulations  Grand  Army  of 
the  Republic,*  would  seem  clearly  to  prohibit  the  granting  of 
such  request,  for  it  states  distinctly  that  the  several  constituted 
bodies  of  the  Grand  Army  of  the  Republic  shall  consist:  i.  Of 
Precinct  organizations,  to  be  known  as  Posts  of  a  Department; 
2.  State  organizations  to  be  known  as  Departments ;  and  3.  A 
National  organization  to  be  known  as  a  National  Encampment. 
The^request  contemplates  a  body  differently  constituted,  and  is 
clearly  in  violation  of  the  rule. 

*  ARTICLE  III,  CHAPTER  I. 

ORGANIZATIQN. 

The  several  constituted  bodies  of  this  association  shall  consist  of : 

First — Precinct  organizations  to  be  known  as Post,  No. ,  De 
partment  of  -  ,  Grand  Army  of  the  Republic;  Provided,  however, 

That  no  Post  shall  be  named  after  any  living  person,  and  that  not  more  than 
one  Post  in  a  Department  shall  adopt  the  same  name,  and  that  the  name 
shall  be  approved  by  the  Department  Commander. 

Second — State  organizations  to  be  known  as  Department  of  -  Grand 

Army  of  the  Republic. 

Third— A  national  organization,  to  be  known  as  the  National  Encamp 
ment  of  the  Grand  Army  of  the  Republic. 


OF   THE    GRAND    ARMY   OF   THE    REPUBLIC.          115 


OPINION  LXXVIII.     NOVEMBER  26,  1877. 

Vote — Required  by  Section  i,  Article  III,  Chapter  II,  and  by  Section  4,  Article  IV,  Chapter 

V,  Rules  and  Regulations  may  be  either  by  ballot,  hand,  or  viva  voce. 
Transfer  card — Holder  may  visit  Post — May  also  become  Charter-member  of  new  Post. 

First — Should    the  vote   required   by  Section    i,  Article 

III,  Chapter  II,*  Rules  and  Regulations,  be  viva  voce,  or 
by  ballot? 

Answer — I  see  no  reason  why  it  might  not  be  either,  or  by. 
hand  ;  if  by  a  ball  ballot,  then  it  would  require  more  than  a  third 
to  be  black  balls  in  order  to  reject. 

Second — Should  the  vote  required  by  Section  4,  Article 

IV,  Chapter  V,  Rules  and  Regulations,  be  vive  voce,  or  by 
ballot? 

Answer — Same  answer  as  above,  except  that  this  is  a  majority 
vote,  and  it  would  require  a  majority  of  black  balls  in  case  of  a 
ballot  to  prevent  re-instatement.| 

Third — Has  a  Comrade,  holding  a  transfer  card,  a  right 
to  visit  a  Post?  Has  he  such  right  if  not  correct  in  the  Na 
tional  or  Department  P.  W.  ? 


*See  Opinion  XCII. 

ARTICLE  III,  CHAPTER  II. 

ADMISSION    OF    COMRADES    FROM    OTHER    POSTS. 

SECTION  i.  A  Comrade  having  a  valid  transfer  card  may  be  re-admitted 
to  the  Post  which  granted  the  same,  by  a  two-thirds  vote  of  the  members 
present  and  voting,  at  a  regular  meeting,  or  he  may  be  admitted  to  another 
Post,  after  his  name  has  been  proposed,  referred  and  reported  upon  as  in 
case  of  an  applicant  for  membership,  and  upon  receiving  a  two-thirds  vote 
of  the  members  present  and  voting,  at  a  regular  meeting,  or  he  may  be  ad 
mitted  a  Charter-member  of  a  new  Post. 

t SECTION  4,  ARTICLE  IV,  CHAPTER  V. 

SECTION  4.  If  a  Comrade  shall  be  one  year  in  arrears  for  dues,  he  shall 
be  dropped  from  the  roll,  and  reinstated  only  by  the  Post  which  dropped 
him,  by  a  two-thirds  vote  by  ballot,  of  all  the  members  present,  and  voting, 


lit)         OPINIONS    OF    JUDGE    ADVOCATES-GENERAL 


In  my  opinion  such  Comrade  has  the  same  right  to  visit  a  Post 
as  any  other  member  of  the  Order.  If  he  has  not  the  P.  W. 
necessary  for  admission,  of  course  he  can  only  be  admitted  by 
the  Officer  of  the  Guard,  or  Day,  acting  under  directions  of  the 
Post.  I  do  not  see  why  the  whole  matter  does  not  rest  in  the 
discretion  of  the  Post  as  to  the  admission  of  any  Comrade  into 
the  meetings  of  the  Post,  except  such  as  visit  on  official  business 
upon  authority  from  Department  or  National  Headquarters. 

Fourth — What  powers,  or  rights,  have  ''Assistant  Muster 
ing  Officers  ' '  appointed  by  General  Orders?  Have  they  the 
right  or  power  to  hear  and  determine  cases  where  objec 
tions  would  be  raised  to  the  installation  of  an  officer  either 
appointed  or  elected? 

Answer — The  Rules  and  Regulations  recognize  no  such  officer 
as  "Assistant  Mustering  Officer." 

Fifth — Can  a  member  holding  a  transfer  card  be  a 
Charter-member  of  a  new  Post? 

Answer — See  Section  i,  Article  III.  Chapter  II. 


OPINION  LXXIX.     DECEMBER  4,  1877. 

Transfer  cards — Members  of  a  Post  can  not  become  Charter-members  of  a  new  Post  without 
transfer  cards,  or  have  been  honorably  discharged — National  or  Department  Head 
quarters  may  ordei  transfer  cards. 

A  certain  Post  represents  that  in  October,   1876,  certain 
of  its  members,  without  notice,  without  any  communications 

at  a  regular  meeting ;  said  sum  not  to  be  less  than  the  amount  charged  as 
muster-in  fee.  If  -elected,  he  shall  be  re-obligated;  Provided,  that  he  may 
be  re-obligated  in  any  Post  within  whose  jurisdiction-  he  may  reside,  upon 
the  written  request  of  the  Post  reinstating  him." 

QUERY— Must  this  not  be  by  ballot,  as  expressed  in  this  Section? 

Webster  defines  the  word  ballot:  ist.  "A  little  ball,  a  slip  of  paper,  or  anything  which  is 
used  in  giving  a  secret  vote." 

2d.  "  A  secret  method  of  voting  at  elections."  See  Opinion  CXL1I,  overuling  this  portion 
of  this  Opinion. — (CAKNAHAN.) 

See  Opinion  CXLII,  appproved  by  National  Encampment,  July,  1883. 


OF    THE   GRAND    ARMY   OF    THE    REPUBLIC.          117 


with  it,  left  the  Post,  and  without  transfer  cards  or  honor 
able  discharges  joined  another  Post;  upon  hearing  which 
latter  fact  it  sent  a  communication  to  said  members,  of 
which  no  notice  has  been  taken,  and  that  in  June,  1877, 
said  members  were  suspended  by  it  for  non-payment  of 
dues. 

On  the  other  hand,  said  members  represent  that  although 
they  left  the  Post  (being  obliging  to  go  with  their  regi 
ment),  yet  when  they  learned  of  the  intended  departure  of 
their  regiment  they  applied  lor  their  transfer  cards,  but  by 
the  advice  of  the  then  Adjutant,  and  the  present  Com 
mander  of  the  Post,  they  postponed  taking  the  cards  until 
their  actual  departure  or  the  arrival  of  certain  expected 
members.  That  after  said  arrival  said  Adjutant  reported 
there  were  no  blanks;  that  they  then  telegraphed  to 
Department  Headquarters  for  blank  cards,  receiving  a 
reply  that  some  would  be  sent  in  a  few  days,  and  suggest 
ing  that  the  address  of  the  departing  Comrades  be  taken, 
so  that  the  cards  could  be  forwarded.  That  on  November 
2d  they  had  the  positive  assurance  of  the  present  Com 
mander  of  the  Post  that  the  cards  would  be  promptly  filled, 
signed  and  forwarded;  that  they  left  on  November  5th; 
that  they  were  in  good  standing  when  they  left  (this  is 
admitted  by  the  Post);  that  on  the  ipth  of  November 
they  wrote  for  their  cards  and  received  no  reply  ;  that  early 
in  December  they  wrote  again  for  their  cards  and  received 
no  reply;  that  on  January  9th,  18/7,  they  changed  their 
station  to  a  place  where  there  was  a  Post  Charter  in  the 
possession  of  a  single  Comrade,  who  requested  them  to 
join  with  him  ;  that  they  represented  to  him  their  situation, 
and  at  his  request  they  wrote  again  in  the  latter  part  of 
January  for  their  cards  but  got  no  reply ;  that  about  the 
last  of  February  they  stated  their  case  to  the  Department 
Commander  (.their  removal  was  into  another  Department), 
who  instructed  this  single  Comrade  to  reorganize  the  Post 


118          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


and  to  admit  them  as  members  ;  that  the  Post  was  reorgan 
ized  (and  it  is  understood  they  joined  it).  They  express 
themselves  .ready  to  verify  their  statements  by  numerous 
affidavits,  and  the  statement  is  corroborated  by  the  Com 
mander  of  the  Department  in  which  these  members  now 
reside.  While  the  Commander  of  the  Department  to 
which  the  Post  belongs  corroborates  the  statement  of  the 
Post  as  to  a  communication  being  forwarded  to  these  mem 
bers,  it  does  not  appear,  however,  what  this  communica 
tion  was. 

Upon  this  statement  I  am  asked,  what  is  the  effect  of 
such  a  state  of  affiairs. 

It  does  not  seem  necessary  or  even  proper  that  the  Judge 
Advocate-General  should  decide  who  is  responsible  for  such  an 
unfortunate  state  of  affairs,  and  without  passing  upon  that  ques 
tion,  I  am  of  opinion  that  these  members  ought  not  to  have 
been  admitted  into  the  Post,  which  it  appears  they  joined  on 
or  about  last  February.  I  can  not  regard  them  other  than  as 
members  of  the  old  Post,  until,  upon  a  transfer  card,  they  have 
regularly  joined  a  new  Post,  or  have  been  discharged  honorably 
from  the  old  Post. 

If  their  statement  be  taken,  I  see  no  difficulty  in  National  or 
Department  Headquarters  directing  the  Post  to  furnish  the 
transfer  cards,  as  of  the  date  when  they  left,  which  would  settle 
the  whole  matter. 

If  the  statement  of  the  Post  be  taken,  they  can  undoubtedly 
be  Court  Martialed  ;  at  any  rate,  as  the  case  stands  at  present, 
they  are.  in  my  judgement,  members,  and  members  only  of  the 
old  Post,  unless,  of  course,  they  have  been,  meanwhile,  dropped 
from  the  rolls,  in  which  case  their  membership  of  the  new  Post 
would  still  be  illegal.* 

*  See  Opinion  XXXV. 


OF   THE   GRAND    ARMY    OF   THE    REPUBLIC.          119 


OPINION  LXXX.     DECEMBER  6,  1877. 

Judge  Advocate-General — Opinion  of,  irrevocable. 

A  question  involving  the  legality  of  the  Opinion  of  the 
Judge  Advocate-General,  November  26,  1871. 

This  Opinion  having  been  adopted  by  the  National  Encamp 
ment,  Grand  Army  of  the  Republic,  stands  irrevocable,  except 
by  the  National  Encampment. 


OPINION  LXXXI.     JANUARY  29,  1878. 

Office  Eligibility— All  members  eligible. 

A  Department  Encampment  votes  that  Department 
Commander,  Senior  Vice  Department  Commander,  and 
Junior  Vice  Department  Commander,  shall  be  ineligible  to 
re-election  to  these  offices  until  they  shall  have  served  at 
least  one  term  out  of  office. 

Is  such  vote  valid,  or  in  compliance  with  Chapter  III, 
Article  IV,  Section  i,  Rules  and  Regulations?. 

The  Section*  referred  to  says  in  the  plainest  terms/  that  "All 
members  of  the  Grand  Army  of  the  Republic  shall  be  eligible  to 
any  office  in  their  Department,"  and  the  vote  referred  to  is,  in 
my  opinion,  clearly  in  violation  of  this  Section,  and  therefore  is 
invalid,  void,  and  of  no  effect. 


OPINION  LXXXII.     JANUARY  30,  1878. 

Department  Representation — No  change  in  the  membership  subsequent  to  the  time  of  the  elec 
tion  can  affect  the  number  of  representatives. 

A  Post  at  the  ' '  First  Stated  Meeting  in  December ' ' 
elects  the  number  of  Department  delegates  to  which  it  is 
then  entitled  by  its  then  membership ;  the  return  for  the 

*See  Opinion  LXX. 


120         OPINIONS    OF    JUDGE   ADVOCATES-GENERAL 


quarter  ending  December  3 1 ,  shows  such  a  falling  off  in 
membership  as  not  to  entitle  the  Post  to  the  number  of 
delegates  elected,  if  the  December  return  controls.  The 
Department  Encampment  meets  in  January.  On  what 
basis  shall  its  roll  be  made  up? 

Article  II,  Chapter  III,  Rules  and  Regulations,  prescribes  the 
basis  of  representation  in  Posts  in  the  Department  Encamp 
ment.* 

Article  IX,  Chapter  II, f  prescribes  the  time  when  such  repre 
sentatives  shall  be  elected,  who'  hold  office  for  the  calendar  year 
next  ensuing  such  election.  And  the  case  put  is :  Will  any  change 
in  membership  subsequent  to  the  time  of  such  election,  affect 
the  number  of  representatives  or  delegates  already  elected?  I 
think  not ;  for  the  reason,  among  other  things,  that  any  other 
view  would  lead  to  instability,  uncertainty  and  fluctuations  in  the 
Constitution  of  the  Department  Encampment,  which  is  a  body  al 
most  wholly  elected  in  December  to  serve  for  a  period  of  twelve 
months,  like  most  of  our  State  Legislatures.  Supposing  the 
other  view  to  prevail,  and  there  were  several  sessions  of  the 
Encampment  held  during  the  year,  if  at  each  session  the  basis 
of  representation  was  determined  by  the  then  number  of  mem 
bers  of  the  Post,  cases  would  not  infrequently  arise  where  a  Post 
would  be  entitled  to  a  different  number  of  representatives  or 
delegates  at  different  sessions  of  the  same  Encampment.  It 
might  be  a  less  number  of  delegates  than  had  been  elected  ;  in 
which  case,  which  delegates  are  to  serve,  and  which  are  to  be 
dropped?  Or  it  might  be  a  larger  number  of  delegates  than  had 
been  elected  ;  in  which  case,  where  is  the  provision  for  the  time 
and  manner  of  electing  the  additional  delegates?  This  would 

*  See  Opinion  XVIII. 

t  ARTICLE  IX,  CHAPTER  II. 

REPRESENTATIVES . 

Each  Post  shall,  at  the  first  stated  meeting  in  December,  annually  elect, 
from  its  own  members,  representatives  and  an  equal  number  of  alternates 
to  the  Department  Encampment,  in  the  manner  prescribed  in  Chapter  III, 
Article  II. 


OF   THE   GRAND    ARMY   OF   THE    REPUBLIC.  121 


seem  to  be  conclusive  and  such  a  construction  would  seem  un 
reasonable.  Therefore,  I  am  of  opinion  as  above  stated,  to-wit, 
that  membership  at  the  time  of  electing  representatives  or  dele 
gates  should  determine  the  number  of  representatives  or  dele 
gates  to  which  a  Post  is  entitled.  As  this  ruling  might  make  it 
inconvenient  to  the  officers  of  the  Encampment  to  determine 
the  exact  membership  at  the  time  of  election  (for  I  don't  think 
any  preceding  return  should  govern),  in  my  judgment  the  Rules 
and  Regulations  should  be  so  amended  as  to  provide  that  the 
return  of  Post  membership  next  preceding  the  election  of  En 
campment  representatives  or  delegates  should  be  the  basis  upon 
which  to  determine  the  representation. 


OPINION  LXXXIII.     FEBRUARY   18,  1878. 

Department  Encampment — Where  a  Post  entitled  to  only  two  delegates  sends  more,  the  En 
campment  may  exclude  the  extra  delegate. 

Two  Posts,  with  three  delegates  each  claim  representa 
tion  in  a  Department  Encampment  against  the  ruling  and 
under  the  protest  of  the  Department  Commander  presid 
ing  ;  the  Encampment  excludes  one  delegate  from  each  of 
the  Posts,  and  the  question  is  raised  :  Was  such  action 
legal  on  the  part  of  the  Encampment?  The  last  return 
preceding  the  convention  of  the  Encampment  showing 
these  posts  to  be  entitled  to  three  delegates  each,  the  ques 
tion  comes  up  on  a  request  to  declare  proceedings  of  En 
campment  void. 

It  appearing  upon  all  the  facts,  and  after  a  hearing  of  all  par 
ties,  that  at  the  time  of  electing  delegates,  to-wit,  ''the  first 
stated  meeting  in  December,"  the  Posts  in  question  had  a  mem 
bership  which  entitled  them  to  have  two  delegates  each.  I 
am  of  opinion  that  the  action  of  the  Encampment  restricting 
these  Posts  to  two  delegates  each  was  valid.  Under  the  ruling 


122          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


of  Opinion  XLIX,  none  of  the  regular  returns  control  in  deter 
mining  the  basis*  so  that  the  question  raised  at  the  Encamp 
ment,  that  except  upon  a  claim  of  fraud  the  returns  could  not 
be  inquired  into,  does  not  arise  in  the  settlement  of  this  case. 

NOTE— See,  also,  Opinion  LXXXII. 


OPINION  LXXXIV.     FEBRUARY  27,  1878. 

Membership;    Transfer  card — Where    transfer  is  asked   for  and  discharge  is  granted   instead, 

membership  is  not  changed. 
Discharge — Granted  at  the  same  meeting  at  which  application  is  made,  is  void. 

A  Comrade  in  good  standing  applies  to  his  Post  at  a 
stated  meeting,  intending  to  apply  for  a  transfer  card,  and 
is  at  the  same  meeting  granted  an  honorable  discharge. 
What  is  his  status? 

His  status  is  the  same  as  if  he  never  applied  for  a  transfer,  for 
the  reason  that  the  honorable  discharge  was  granted  in  violation 
of  Section  3,  Article  IV,  Chapter  II,  Rules  and  Regulations, 
which  requires  the  discharge  to  be  granted  at  some  "  subsequent 
meeting,"  so  that  this  discharge  being  null  and  void,  and  this 
being  the  only  action  attempted  to  be  taken  on  the  application, 
the  matter  stands  as  if  no  action  had  been  taken. 

NoTE-See  Section  3,  Article  IV,  Chapter  II,  at  close  of  Opinion  XLV. 


OPINION  LXXXV.     FEBRUARY  27,  1878. 

Adjournment — Motion  to  adjourn  is  out  of  order. 

Is  a  motion  to  adjourn  ever  in  order  in  any  Post  of  the 
Grand  Army  of  the  Republic? 

At  Post  meetings,  where  the  Ritual  is  observed,  a  strict  com 
pliance  with  the  Ritual  would  render  a  motion  to  adjourn  out  of 
order,  and  therefore  I  am  of  opinion  that  such  a  motion  at  such 
meeting  would  not  be  in  order. 

NOTE— See  Opinion  GUI. 

*  Changed  by  Rules  and  Regulations.  See  Paragraph  4,  Article  II, 
Chapter  III,  Opinion  XVIII. 


OF   THE    GRAND    ARMY    OF   THE   REPUBLIC.          123 


OPINION  LXXXVI.     FEBRUARY  2?,  1878. 

Post  Commander  can  not  turn  over  his  command  to  a  Comrade  not  a  member  of  the  Post.    Pro 
ceedings  void. 

Muster-in  fee — Must  be  uniform. 
"  Same  Manner" — Meaning  of. 

Has  a  Post  Commander  (except  at  a  regular  inspection 
or  installation  of  its  officers)  the  right  to  turn  over  his  com 
mand  to  a  Comrade  as  Commander  who  is  not  a  member 
of  the  Post ;  and  if  not,  would  the  proceedings  under  any 
such  visiting  Comrade  occupying  the  chair,  be  valid? 

Under  Section  3,  Article  IV,  Chapter  II,  Rules  and 
Regulations,  can  a  Post  establish  an  initiation  fee  for  one 
of  its  honorably-discharged  Comrades,  different  from  that 
established  for  recruits?  What  does  the  phrase,  "same 
manner,"  mean? 

First — For  a  Post  Commander  to  turn  the  command  of  his 
Post  over  to  a  Comrade,  such  as  is  put  in  the  case,  would  be 
clearly  in  violation  of  Sections  i  and  2,  Article  VIII,  Chapter  II, 
Rules  and  Regulations,*  and  the  proceedings  under  such  Acting- 
Commander  would  be  null  and  void  and  of  no  effect. 
• 

*  ARTICLE  VIII,  CHAPTER  II. 

DUTIES    OF    OFFICERS. 

SECTION  I.  It  shall  be  the  duty  of  the  Post  Commander  to  preside  at  all 
meetings  of  the  Post;  to  enforce  a  strict  observance  of  the  Rules  and  Regu 
lations  and  By-Laws,  and  all  orders  from  proper  authority,  to  detail  all 
officers  and  committees  not  otherwise  provided  for,  to  approve  all  orders 
drawn  upon  the  Quartermaster  for  appropriations  of  money  made  and 
passed  at  a  stated  meeting  of  the  Post,  to  forward  the  returns  required  by 
Chapter  V,  Article  II ;  and  to  perform  such  other  duties  as  his  charge  may 
require  of  him. 

SEC.  2.  The  Vice  Post  Commanders  shall  perform  such  duties  as  are 
required  of  them  by  the  Ritual,  and,  in  the  absence  of  the  Commander, 
shall  take  his  place  in  the  order  of  their  rank.  If  neither  of  them  are 
present,  the  Post  shall  elect  a  Commander  pro  tempore. 

NOTE — For  Section  3,  Article  IV,  Chapter  II,  see  Opinion  III. 


124          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


Second — I  am  of  opinion  that  a  Post  must  have  a  regular  and 
uniform  initiation  fee,  and  that  it  can  not  establish  different  fees 
for  different  applicants,  for  this  would  be  in  violation  of  the  sim 
plest  privileges  of  the  fairness,  impartiality  and  uniformity  which 
is  supposed  to  pervade  all  law.  The  meaning  of  the  phrase 
"same  manner,"  in  the  section  referred  to,  is,  in  my  judgment, 
that  all  forms,  reports  and  proceedings,  (save  those  excepted  by 
the  rule,  to-wit,  "  Muster"  and  "  Taking  anew  the  obligation,") 
must  be  observed  as  in  the  case  of  an  original  applicant. 


OPINION  LXXXVII.     MARCH  26,  1878. 

National  Encampment — A  Past  Department  Commander,  though  a  member  of  a  Post  in  another 
Department  than  that  of  which  he  was  Commander,  is  a  member  of  the  National  En 
campment,  but  not  a  member  of  his  present  Department. 

A  Comrade,  formerly  a  Department  Commander,  be 
comes  a  member  in  good  standing  of  a  Post  of  a  Depart 
ment  other  than  the  one  of  which  he  was  Commander, 
under  Article  II,  Chapter  III,  and  Section  i.*  Article  II, 
Chapter  IV, f  Rules  and  Regulations,  is  he  a  member  of 
his  present  Department  Encampment  and  of  the  National 
Encampment? 

I  am  of  opinion  that  the  Comrade  is  a  member  of  the  Na 
tional  Encampment,  but  not  a  member  of  the  Department 
Encampment  other  than  that  of  the  Department  of  which  he 
was  Commander,  and  then  only  while  a  member  in  good  stand 
ing  of  a  Post  of  such  Department.  The  language  of  Article  II  r 

*See  Article  II,  Chapter  III,  at  close  of  Opinion  XVIII. 

t  Paragraph  3,  Section  I,  Article  II,  Chapter  IV. 

"Of  Past  Department  Commanders  who  have  served  for  a  full  term  of 
one  year,  or  who,  having  been  elected  to  fill  a  vacancy,  shall  have  served  to 
the  end  of  the  term,  so  long  as  they  remain  in  good  standing  in  their  several 
Posts."  ******** 


OF    THE   GRAND    ARMY    OF    THE    REPUBLIC.          125 


Chapter  III,  is  not  explicit,  but  any  other  construction  than 
the  one  above  given  would  seem  to  be  a  forced  construction, 
and  not  within  a  true  meaning  of  the  Article.  While  as  to 
membership  of  the  National  Encampment  the  same  difficulty 
does  not  arise,  for  in  that  case  Section  i,  Article  II,  Chapter  IV, 
must  mean  from  the  nature  of  things :  Any  Past  Commander 
of  any  Department. 

NOTE— See  Opinions  CXI  and  CXII. 


OPINION  LXXXVIII.     MAY   16,  1878. 

Discharge — A  Post  has  nothing  to  do  with  granting  an  honorable  discharge. 
Application  for  discharge  may  be  withdrawn. 

A  Comrade  in  good  standing  applies  to  his  Post  Com 
mander,  at  a  regular  meeting,  for  his  discharge.  Can  such 
Comrade,  before  his  discharge  is  granted,  withdraw  his 
application,  without  the  consent  of  a  majority  of  his  Post, 
at  some  subsequent  meeting? 

I  am  of  opinion,  under  Section  3,  Article  IV,  Chapter  II,* 
Rules  and  Regulations,  a  Post  has  nothing  to  do  with  the  hon 
orable  discharge  of  a  Comrade.  Under  said  Article,  it  is  a 
Comrade's  right,  if  he  is  in  good  standing,  to  make  application 
at  a  regular  meeting  to  the  Post  Commander,  and  at  a  subse 
quent  meeting  to  have  his  discharge,  which  is  the  duty  of  the 
Post  Commander  to  sign,  and  the  Adjutant  to  attest. 

If  I  am  correct,  then  it  is  unnecessary  to  pass  upon  the  ques 
tion  of  the  Comrade's  right  to  withdraw  his  application  in  this 
case.  It  appears  that  no  question  has  arisen  between  the  appli 
cant  and  the  Post  Commander,  and  that  would  seem  to  be  a 
matter  solely  between  themselves,  with  the  right  of  either  party 
to  appeal  to  higher  authority. 


*  See  Section  3,  Article  IV,  Chapter  II.  at  close  of  Opinion  XLV. 


126          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 

OPINION  LXXXIX.     AUGUST  2,  1878. 

Applicant  for  membership — Must  be  a  ballot. 

If  an  applicant  for  admission  to  Post  membership  is  re 
ported  upon  by  the  committee  unfavorably,  is  it  necessary 
to  ballot  on  his  election,  or  does  the  report  of  the  commit 
tee  settle  the  question  of  his  admission? 

Whatever  the  report  of  the  committee,  I  am  clearly  of  opinion 
that  there  should  he  a  ballot.  See  Section  4,  Article  II,  Chap 
ter  II,  Rules  and  Regulations.* 


OPINION  XC.     AUGUST  2,  1878. 

Officer — Must  be  installed  before  he  can  act. 

Can  a  Department  officer  be  considered,  and  act  as  such, 
without  being  regularly  installed? 

In  my  opinion  he  can  not.  The  old  incumbent  does  not  re 
tire,  and  there  fis  no  vacancy  until  the  officer  is  duly  installed. 
See  Section  2,  Article  V,  Chapter  III,  Rules  and  Regulations; 
also.  Opinion  IX. 

NOTE — See,  also,  Opinion  CII. 


*SECTION  4,  ARTICLE  II,  CHAPTER  II. 

SECTION  4.  After  the  reading  of  the  report,  the  Commander  shall  give 
opportunity  to  any  Comrade  having  objections  to  the  election  of  the  appli 
cant  to  state  the  same,  after  which  a  ballot  with  ball  ballots  shall  be  had. 
If,  on  a  count  of  the  balls  deposited,  it  appear  that  not  more  than  twenty 
are  cast,  and  two  or  more  of  them  are  black,  the  candidate  shall  be  declared 
rejected;  but,  if  more  than  twenty  are  cast,  then  an  additional  black  ball  for 
every  additional  twenty  shall  be  necessary  to  reject.  If  a  less  number  of 
black  balls  than  above  provided  be  cast,  the  candidate  shall  be  declared 
elected,  and  no  reconsideration  of  a  ballot  shall  be  had  after  the  Com 
mander  has  announced  the  result  thereof;  but,  should  the  result  of  the  bal 
lot  be  unfavorable,  and  the  Commander  suspect  any  mistake,  he  may,  at  his 
discretion,  before  declaring  the  vote,  order  a  second  ballot,  the  result  of 
which  shall  be  final. 

See,  also,  Opinion  CXXXVIII. 


OF   THE    GRAND    ARMY   OF   THE    REPUBLIC.          127 


OPINION  XCI.     AUGUST  24,  1878. 

Assessments  for  burial  expenses  illegal. 

A  Post  By-Law  states  that  upon  the  death  of  a  Com 
rade,  and  when  he  is  buried  at  the  expense  of  the  Post, 
an  assessment  of  one  dollar  shall  be  levied  upon  each 
member.  Is  such  By-Law  legal? 

I  am  of  opinion  that,  under  Opinion  LXIII,  January  25,  1875, 
(which  governs,)  that  this  By- Law  is  illegal. 


OPINION  XCII.     SEPTEMBER   10,  1878. 

Charter-members — Comrades  must  have  transfer  card  or  honorable  discharge. 

In  order  for  a  Comrade  to  be  admitted  as  a  Charter- 
member  of  a  new  Post,  must  he  have  an  honorable  dis 
charge  or  a  transfer  card? 

Is  Opinion  XXXV,  May  25,  1872,  which  was  adopted 
by  the  National  Encampment,  in  conflict  with  Section  I, 
Article  III,  Chapter  II,  Rules  and  Regulations?* 

A  member  may  be  admitted  as  a  Charter-member  of  a  new 
Post  upon  a  transfer  card,  (see  Section  I,  Article  III,  Chapter  II, 
Rules  and  Regulations.)  The  Opinion  referred  to  was  rendered 
in  1872,  and  the  Section  referred  to  was  adopted  in  1874,  so  that 
part  of  the  Opinion  referred  to,  which  would  seem  to  indicate 
that  a  Comrade  must  have  an  honorable  discharge  in  order  to  be 
admitted  as  a  Charter-member  of  a  new  Post,  can  not  now  be 
regarded  as  operative. 

NOTE— See  Opinions  LXXVI1I  and  LXXIX. 
*  See  this  Section  at  close  of  Opinion  LXXVIII. 


128          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 

OPINION  XCIII.     DECEMBER  4,  1878. 

Past  Post  Commtmder — Does  not  lose  his  standing  as  a  Past  Post  Commander. 

Does  a  Past  Post  Commander,  by  joining  a  Post  other 
than  the  one  in  which  he  was  a  Commander,  or  by  becom 
ing  a  Charter-member  in  a  new  Post,  though  both  the  old 
and  the  new  Posts  may  afterwards  surrender  their  Charters, 
lose  his  standing  as  a  Past  Post  Commander? 

I  think  not,  for  the  reason  that,  having  been  elected  and  having 
served  as  a  Post  Commander,  he  has,  by  so  doing,  gained  a  right 
to  certain  honors  and  positions  under  the  Rules  and  Regulations, 
of  which  he  can  not  be  deprived  except  by  a  change  in  the 
Rules  and  Regulations,  while  he  is  a  member  in  good  standing 
of  any  Post. 

NOTE— See  Opinion  XCIV. 


OPINION  XCIV.     DECEMBER  5,  1878. 

Past  Department  Commander— When  he  accepts  a  discharge  loses  his  position  as  a  Past  Depart 
ment  Commander. 

Can  a  Past  Department  Commander,  when  he  has  re 
ceived  an  honorable  discharge  and  then  has  been  re-admit 
ted  to  the  Order,  assume  the  honors  and  positions  due  to  a 
Past  Department  Commander  without  having  served  again 
as  a  Department  Commander. 

I  think  not,  for  the  reason  that  Section  3,  Article  IV,  Chapter 
II,  Rules  and  Regulations,*  would  seem  to  treat  such  a  member 
when  applying  for  re-admission,  as  a  recruit,  making  only  the 
exception  that  he  need  not  be  mustered.  And  it  is  a  rule  of  law 
that  where  exceptions  are  expressly  made,  all  other  matters  are 
expressly  excluded  save  those  especially  excepted.  There  is 


*  See  this  Section,  Rules  and  Regulations,  at  close  of  Opinion  XLV. 


OF   THE    GRAND    ARMY    OF   THE   REPUBLIC.  129 


nothing  bearing  directly  upon  the  question  in  the  Rules  and 
Regulations,  but  the  above-mentioned  rule,  together  with  the 
common  interpretation  of  the  word  "discharge,"  and  a  reason 
able  construction  of  the  Section  referred  to,  would  lead  to  the 
view  that  a  member  once  discharged  and  again  admitted  can 
not  have  a  record  anterior  to  the  date  of  his  last  admission. 


OPINION  XCV.     JANUARY  29,  1879. 

Post — Power  of— Can  accept  the  resignation  of  its  Commander. 
Department  Commander — May  issue  order  to  annul  illegal  proceedings  of  a  Post. 
Department  Commander— Can  overrule  decisions  of  a  Post  Commander  without  an  appeal  hav 
ing  been  taken. 

The  Commander  of  a  Post  resigns ;  his  resignation  is 
accepted  by  the  Post  and  notice  is  given  of  an  election  to 
fill  the  vacancy  at  the  next  regular  meeting  of  the  Post,  at 
which  meeting  the  point  is  taken,  and  sustained  by  the 
Chair,  that  a  Post  can  not  accept  the  resignation  of  its 
Commander,  but  that  it  must  be  done  by  the  Depart 
ment  Commander,  and  no  election  is  held.  At  the  meet 
ing  next  following,  the  Senior  Vice-Commander  of  the 
Department  is  present ;  he  reads  an  order  from  the  De 
partment  Commander  directing  him,  the  said  Senior  Vice- 
Commander,  to  proceed  to  the  Post  at  their  meeting  and 
do  what  he  thinks  best  in  the  premises,  and  declaring  that 
the  Post  is  the  superior  of  its  Commander.  And  the  Se 
nior  Vice-Commander  orders  an  election  for  a  new  Com 
mander  to  proceed,  which  was  held  under  the  protest  of 
the  Post  Commander  who  had  resigned  ;  a  Commander  is 
elected  and  installed  at  the  meeting  The  Post  Com 
mander  who  had  resigned  appeals  from  said  order  from 
Department  Headquarters,  protests  against  all  the  proceed 
ings  at  the  last  mentioned  meeting  of  the  Post,  and  raises 
the  following  points : 
9 


130         OPINIONS    OF    JUDGE    ADVOCATES-GENERAL 


First — Can  an  order  be  issued  instructing  the  Senior 
Vice-Commander  of  the  Department  to  amend  the  pro 
ceedings  of  a  Post  in  his  Department,  where  every  order 
has  been  obeyed  by  the  Post  Commander,  except  in  ex 
treme  cases? 

Second — Is  it  legal  for  a  Post  Commander  to  decide 
points  of  order  in  a  Post  meeting  as  per  Rules  and  Regu 
lations  of  the  Grand  Army  of  the  Republic ;  and  can  the 
Department  Commander  overrule  the  decisions  of  the  Post 
Commander  without  an  appeal  having  been  taken  in  due 
form  ? 

Third — How  can  a  Post  Commander  carry  out  his  ob 
ligations  if  the  Comrades  of  his  Post  are  his  superiors? 

Fourth — Can  an  officer,  superior  in  rank,  designate  his 
inferior  officer  to  carry  out  an  order? 

The  case  covers  sufficiently  the  points  put  for  my  decision, 
though  it  by  no  means  covers  all  the  matters  and  questions  which 
might  arise  in  the  papers  referred  to.  And  I  shall  confine  my 
self  strictly  to  the  points  raised  by  the  appellant,  and  my  opinion 
is  as  follows : 

First — That  an  order  can  be  issued  instructing  the  Senior 
Vice-Commander,  or  any  other  Comrade,  to  cause  to  be  an 
nulled  or  reverse  the  proceedings  of  a  Post :  Provided,  The  order 
comes  from  a  superior  authority,  and  the  proceedings  to  be  an 
nulled  or  reversed  are  illegal,  and  the  proceedings  in  this  case, 
as  regards  the  ruling  of  the  Post  Commander  upon  the  accept 
ance  of  the  resignation  as  set  forth  in  the  appeal,  in  my  judg 
ment,  were  illegal. 

Second — That  it  is  legal  for  a  Post  Commander  to  decide 
points  of  order  in  a  Post  meeting,  and  that  a  Department  Com 
mander  can  overrule  the  decisions  of  a  Post  without  an  appeal. 
(On  the  latter  point  see  Opinion  LXXXVI,  October  18,  1877, 
under  "First.") 

Third — That  an  opinion  upon  the  third  point  is  not  necessary 
to  a  solution  of  the  case  at  hand,  and  is  too  general  and  indefi 
nite  for  any  satisfactory  answer,  though  it  may  be  said  there 


OF    THE   GRAND   ARMY   OF    THE    REPUBLIC.          131 


appears  to  be  nothing  inconsistent  between  the  rights  of  Com 
rades  and  the  duties  of  Commanders. 

Fourth — That  the  Opinion  expressed  on  the  first  point  covers 
the  fourth  point  raised.  None  of  the  points  raised  seem  to  pre 
sent  the  real  point  at  issue,  which  is :  Can  a  Post  accept  the  res 
ignation  of  its  Commander?  In  my  opinion,  it  can.  The  Post 
Commander  receives  his  office  at  the  hands  of  his  Post  Com 
rades — to  their  hands  he  returns  it.  If  he  is  inclined  to  give  it 
up  before  the  expiration  of  his  term  of  office,  the  power  to  accept 
a  resignation  must  reside  somewhere,  in  the  absence  of  any  Rule 
or  Regulation  on  the  subject,  and,  following  the  analogy  in  all 
similarly  instituted  bodies,  it  must  reside  in  the  body  which  con 
fers  the  office  to  be  resigned. 


OPINION  XCVI.     JANUARY  20,  1879. 

Post — Organized  after  third  quarter  entitled  to  representation  in  Department  Encampment. 

Is  a  Post,  organized  and  in  working  order,  after  the  third 
quarter  of  the  year  and  before  the  annual  meeting  of  the 
Department  Encampment,  entitled  to  representation  in  the 
Encampment? 

By  Section  3,  Article  II,  Chapter  III,  Rules  and  Regulations,* 
every  Post  is  entitled  to  representation  in  the  Department  En 
campment,  if  not  in  arrears.  In  the  case  put  the  Post  can  not 
be  in  arrears  for  reports,  for  none  are  due  from  it  until  the  first 
quarter,  and  if  not  in  arrears  for  dues,  and  have  elected  dele 
gates  at  the  proper  time,  the  delegates  should  be  admitted. 


*  See  this  Section  with  Opinion  XVIII. 


132          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


OPINION  XCVII.     JANUARY  21,  1879. 

Membership;  Eligibility — Service  in  revenue  marine  does  not  render  one  eligible. 

Can  one  who  served  during  the  late  war  in  the  United 
States  revenue  marine  become  a  member  of  the  Grand 
Army  of  the  Republic? 

Article  4,  Chapter  I,  Rules  and  Regulations,  confines  member 
ship  to  those  honorably  discharged  after  serving  during  the  late 
Rebellion,  from  the  United  States  army,  navy  or  marine  corps, 
distinct  and  well-defined  and  well-understood  branches  of  the 
service,  and  they  do  not,  in  my  judgment,  include  the  revenue 
marine,  still  another  and  distinct  branch  of  the  Government 
service.  Therefore  my  answer  would  be  in  the  negative. 

NOTE— See,  also,  Opinion  XLVII. 


OPINION  XCVIII.     JANUARY  21,  1879. 

Officers — Installation  of  in  December  void. 

Representation — Failure  of  Post  to  make  surgeon's  report  sufficient  to  exclude  Post  from  De 
partment  Encampment. 

If  a  Post  Commander  take  upon  himself  to  install  in 
December  the  newly-elected  officers  of  his  Post,  instead  of 
January,  as  prescribed  by  the  Rules  and  Regulations,  would 
not  the  installation  be  void,  and  would  not  the  old  officers 
hold  over  until  their  successors  were  duly  installed? 

Should  not  the  officer  so  doing  make  report  of  his  doings 
to  the  Department  Headquarters? 

A  Post  makes  no  Surgeon's  report  during  the  year.  Is 
not  that  sufficient  to  exclude  the  Post  from  representation 
in  the  Department  Encampment? 


OF  THE   GRAND   ARMY   OF   THE   REPUBLIC.          133 


My  answers  are  as  follows : 

To  the  first,  yes ;  to  the  second,  he  should  not  do  so  at  all ; 
to  the  third,  yes,  if  the  Surgeon  has  been  required  by  the  Medi 
cal  Director  under  the  requirements  of  the  Surgeon-General  to 
make  any  return  ;  otherwise,  no. 


OPINION  XCIX.     MARCH  29,  1879. 

Membership — Contract-Surgeon  not  eligible. 

An  applicant  for  membership  to  the  Grand  Army  of  the 
Republic  was  a  Contract-Surgeon,  afterwards  commissioned 
by  the  President  and  confirmed  by  the  Senate,  but  he 
never  accepted  commission,  and  never  was  mustered  into 
service.  Is  he  entitled  to  membership? 

Clearly  not,  for  he  can  not  be  said  to  have  been  honorably 
discharged  from  the  United  States  army,  navy  or  marine  corps. 
See  Article  IV,  Chapter  I,  Rules  and  Regulations. 

NOTE— See  Opinion  IV  for  Article  IV,  Chapter  I. 


OPINION  C.     MARCH  29,  1879. 

Balloting — Can  not  be  for  several  candidates  collectively. 

Is  it  proper  for  a  Post  to  ballot  for  several  candidates 
collectively? 

Certainly  not — supposing  the  Post  wanted  to  black-ball  one 
and  elect  the  others,  how  could  it  be  done  on  a  collective  ballot 
(if  I  may  use  that  expression?) 


134          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


OPINION  CI.     MARCH  29,  1879. 

Records — Can  not  be  altered. 
Posts — May  adopt  Rules  of  Order. 

A  Post  adopts  a  motion ;  at  the  next  meeting  the  records 
of  the  meeting  at  which  the  motion  was  adopted,  are  read 
for  approval,  when  a  motion  is  made  to  alter  the  record  so 
that  it  shall  appear  as  if  the  motion  was  never  adopted. 
Is  such  a  motion  in  order? 

Do  the  Rules  of  Order  for  the  National  Encampment 
govern  the  action  of  different  Post  meetings,  so  far  as  they 
appear  applicable? 

To  the  first  inquiry,  I  answer,  that  such  a  motion  would  not 
be  in  order ;  the  record  can  not  be  changed  except  to  correct  an 
error.  To  the  second  inquiry,  I  answer,  they  do  not ;  each 
Post  can  adopt  Rules  of  Order  of  its  own — not  inconsistent  with 
the  Rules  and  Regulations.* 


OPINION  CII.     MARCH  29,  1879. 

Officers — Installation — Senior  Past  Post  Commander  may  install — Officer  detailed  to  install  has 
no  authority  until  he  reports  for  duty — Officer  must  be  installed  before  he  is  qualified. 

A  certain  Comrade  is  specially  detailed  to  muster  the 
officers  of  a  Post  at  a  certain  time,  at  which  time  he  fails 
to  announce  himself  to  the  Sentry  and  to  appear,  though 
present  in  an  adjoining  room  and  informed  that  the  Post  is 

*  ARTICLE  X,  CHAPTER  II. 

BY-LAWS. 

Posts  may  adopt  By-Laws  for  their  government,  not  inconsistent  with 
these  Rules  and  Regulations,  or  the  By-Laws  or  Orders  of  the  National  or 
Department  Encampments,  and  may  provide  for  the  alteration  or  amend 
ment  thereof. 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC.          135 


ready,  and   the   Senior   Past    Post   Commander  musters  in 
the  officers  of  the  Post,  and  I  am  asked  as  follows: 
First — Were  these  officers  regularly  installed? 

Answer — My  answer  is,  yes  ;  see  Paragraph  3,  of  first  page  of 
Installation  Service.* 

Second — Had  the  Comrade  so  detailed,  any  authority 
under  the  order,  so  far  as  the  Post  is  concerned,  until  he 
had  presented  himself  to  the  Post  as  Mustering  Officer? 

Answer — I  think  not. 

Third — Is  any  officer  elected  but  not  installed  qualified 
to  act? 

Answer — No.f 

Fourth — Was  the  Comrade  so  detailed  justified  in  his  re 
fusal  to  obey  his  orders,  he  being  able  to,  and  everything 
being  in  readiness? 

Answer — I  can  not  answer  until  he  has  had  a  chance  to  be 
heard. 


OPINION  CIII.     MAY  6,  1879. 

Motion — To  "proceed  to  close"  or  to  "adjourn"  not  in  order. 

Is  a  motion  to  "proceed  to  close"  in  order? 
Should   such  a  motion  be  governed  by  the  usual  parlia 
mentary  rules  governing  motions  to  adjourn? 
Is  a  motion  to  adjourn  in  order? 


*  Should  the  Mustering  Officer,  from  any  cause,  fail  to  be  present  at  the 
time  of  installation,  the  Senior  Past  Post  Commander  will  act  as  Mustering 
Officer.  (Installation  Service.) 

t  See  Opinion  XC.     Also,  Opinion  IX. 


136          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


The  third  question  is  already  covered  by  Opinion  LXXXV, 
February  27,  1878,  which  would  seem,  by  inference,  to  cover 
the  first  question  and  to  the  same  effect.  Such  is  my  opinion ; 
this  obviates  the  necessity  of  passing  upon  the  second  question. 


OPINION  CIV.     SEPTEMBER  25,  1879. 

Membership — Woman  not  eligible. 

A  woman  who  rendered  important  service  to  the  Gov 
ernment  as  bearer  of  dispatches,  and  in  procuring  informa 
tion  within  the  Rebel  lines,  and  who,  in  performing  such 
service,  suffered  much  and  made  great  sacrifices,  and  who 
was  arrested  as  a  spy  and  barely  escaped  a  public  execu 
tion,  desires  to  become  an  honorary  member  of  a  Post  of 
the  Grand  Army  of  the  Republic.  Is  she  eligible? 

No  such  membership  is  known  to  the  Order.  The  National 
Encampment  has  never  provided  for  honorary  membership. 
None  but  soldiers  and  sailors  who  served  during  the  Rebellion 
are  eligible  to  membership. 

NOTE— Opinion  XXXI,  April  15,  1872. 


OPINION  CV.     DECEMBER  17,  1879. 

Court  Martial — No  appeal  from  the  action  of  the  reviewing  officer. 

A  Comrade,  tried  by  Post  Court  Martial,  and  sentenced 
to  suspension  for  ten  years,  appeals  to  the  Department 
Commander,  who  disapproves  the  finding  of  the  Court 
Martial,  and  reverses  the  sentence  of  suspension. 

Has  the  Post  or  its  officers,  who  are  prosecuting  the 
case,  the  right  of  appeal  to  the  Commander-in-Chief  ? 


OF   THE    GRAND    ARMY   OF   THE    REPUBLIC.          137 


There  is  no  such  right  of  appeal.  A  Court  Martial,  where  the 
Rules  and  Regulations  are  silent,  is  governed  by  military  law  and 
usages.. 

In  this  case,  the  proper  reviewing  officer  passed  upon  the 
sentence,  and  no  appeal  is  granted  to  the  prosecuting  authority. 

The  Department  Commander  may  submit  any  of  the  questions 
to  National  Headquarters,  but  this,  with  him,  is  entirely  a  matter 
of  discretion. 

NoTE-See  Opinions  I,  LVI,  LX1V,  LXXIII  and  CXLV. 


OPINION  CVI.     DECEMBER  17,  1879. 

Past  Commanders,  or  officers  who  serve  for  the  period  of  their  election,  entitled  to  the  honors. 

Are  Past  Officers  who  have  served  three  months — the 
last  three  months  of  the  year — entitled  to  Past  honors,  and 
to  be  Past  Commanders? 

Past  Officers,  who  were  elected  to  fill  a  vacancy,  and  served 
to  the  end  of  the  term,  are  entitled  to  all  the  honors  of  a  full 
term.  So  long  as  they  remain  in  good  standing  in  their  respect 
ive  Posts,  they  are  entitled  to  the  honors  of  their  grade,  as  Past 
Officers. 


OPINION  CVII.     JANUARY  6,  1880. 

Department  Officer — May  also  be  an  officer  of  his  own  Post. 

Court  Martial — Junior  Vice-Commander  of  Department  may  be  appointed  on. 

Does  the  election  of  a  Comrade  to  a  Department  office 
remove  him  from  the  jurisdiction  of  the  Commander  of  the 
Post  of  which  he  is  a  member? 

Can  a  Post  Commander  in  a  special  order  convening  a 
Post  Court  Martial,  appoint  as  a  member  of  the  Court  a 


138          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


member  of  the  Post  who  is  Junior  Vice-Commander  of  the 
Department? 

When  a  Department  officer  is  on  duty  as  a  Department'  officer, 
he  is  not  subject  to  the  orders  of  the  Commander  of  the  Post; 
but  he  is  entitled  to  the  rights  and  privileges  of  a  member  of  his 
Post,  if  he  sees  fit  to  avail  himself  of  them.  He  must  pay  his 
dues,  and  he  may  at  the  same  time  be  an  officer  of  the  Post, 
and  when  acting  as  a  member  or  officer  of  the  Post,  he  is  under 
the  jurisdiction  of  the  Post  Commander. 

The  Post  Commander,  by  virtue  of  his  office,  is  a  member  of 
the  Department  Encampment,  and  may  himself  be  a  Depart 
ment  officer. 

The  Post  Commander,  in  detailing  a  Court  Martial,  should 
exercise  a  sound  discretion.  He  should  not  select  those  near  of 
kin  to  the  accused,  or  those  known  to  entertain  prejudice,  and 
should  not  detail  a  Comrade  who  would  probably  be  the  review 
ing  officer.  The  accused  could  challenge,  for  cause,  any  such 
member.  But  if  the  Junior  Vice  Commander  of  the  Depart 
ment,  detailed  by  the  Commander  of  his  Post  as  a  member  of  a 
Post  Court  Martial,  sit  unchallenged  as  a  member  of  the  Court, 
the  proceedings  will  not  thereby  be  rendered  invalid. 

It  may  so  happen  that  a  Comrade  who  has  served  as  a  member 
of  a  Post  Court  Martial  may  subsequently  be  elected  Department 
Commander,  and  when  the  proceedings  reach  Department  Head 
quarters,  he  may  be  in  the  position  of  reviewing  officer.  In 
which  case,  analogy  would  suggest  that  the  proceedings  be  for 
warded  to  the  Commander-in-Chief,  or  the  Senior  Vice  Com 
mander  act  as  reviewing  officer  in  passing  upon  the  case.  But 
the  contingency  has  not  arisen,  and  that  question  is  not  before  me. 


OPINION  CVIII.     JANUARY  6,  1880. 

Dropped  Members — Where  his  own  Post  is  disbanded  may  be  re-admitted  by  Department  Com 
mander. 
May  hecome  Charter-member  of  a  new  Post. 

In  what  manner  can  a  Comrade  dropped  for  non-payment 
of  dues  regain  his  standing  in  the   Order,   if  the   Post  of 


OF   THE   GRAND    ARMY   OF   THE    REPUBLIC.          139 


which    he   was   a   member    has    disbanded?      Can   such   a 
Comrade  become  a  Charter-member  of  a  new  Post? 

The  applicant  for  re-admission  should  pay  into  the  Department 
treasury  the  amount  he  owed  his  own  Post ;  and  the  Department 
Commander,  in  his  discretion,  may  re-admit  him  to  the  Order, 
and  approve  his  application  to  join  another  Post ;  or,  he  may 
become  a  Charter-member  of  a  new  Post. 

NOTE— See  Opinions  XXXV,  XLII,  CXV  and  CXVI. 


OPINION  CIX.     JANUARY   12,  1880. 

Department  Encampment— Can  be  no  proxies. 

Can  members  of  the  Department  Encampment  be  repre 
sented  in  the  sessions  of  that  body  by  proxy?  And  if 
proxies  are  allowed,  can  a  Comrade,  already  a  member  of 
the  Encampment,  hold  a  proxy  or  proxies,  and,  in  that 
capacity,  cast  his  own  and  one  or  more  proxy  votes? 

The  Rules  and  Regulations  provide  that  the  Department  En 
campment  shall  consist  of  the  officers  named  and  referred  to  in 
Article  II,  Chapter  III,*  and  the  number  of  members  or  alter 
nates  therein  designated,  selected  by  ballot  of  the  several  Posts. 
No  other  persons  can  act  as  members  of  a  Department  Encamp 
ment. 

By  Article  VIII,  Chapter  III,t  "Each  member,  present  at  a 
meeting  of  the  Department  Encampment,  shall  be  entitled  to 
one  vote;"  and  since  provision  is  made  for  alternates,  and 

*  See  this  Section  at  close  of  Opinion  XVIII. 

t  ARTICLE  VIII,  CHAPTER  III. 

VOTING. 

Each  member  present  at  a  meeting  of  the  Department  Encampment  shall 
be  entitled  to  one  vote.  The  ayes  and  noes  may  be  required  by  any  three 
members  representing  different  Posts. 


140          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


vacancies  may  be  filled  in  the  manner  provided  in  Chapter  II, 
Article  VII,  Section  3,*  it  is  considered  that  only  those  members 
or  their  alternates,  duly  elected,  who  are  present  have  a  right  to 
a  vote  at  a  meeting  of  the  Department  Encampment. 

The  provision  that  no  proxy  or  substitute  can  act  for  a  Post 
Commander  may  seem  hostile  to  this  view,  but  that  may  be  in 
tended  to  prevent  a  Vice-Commander  or  Commander  pro  tern- 
pore  from  representing  a  Post  in  Department  Encampment,  f 


OPINION  CX.     JANUARY  17,  1880. 

Court  Martial — For   a  member  of  National  Encampment,   Commander-in-Chief  convenes  the 

Court— Same  if  the  Department  Commander  is  the  accuser. 
The  person  who  signs  the  charges  is  the  accuser. 

Has  the  accused,  who  is  a  member  of  the  National  En 
campment,  the  right  to  be  tried  by  a  Court  Martial  con 
vened  by  order  of  the  Commander-in-Chief,  the  offense 
with  which  he  is  charged  having  been  committed  in  his  ca 
pacity  of  a  Department  officer? 

The  charges  having  been  preferred  by  the  Department 
Commander,  has  the  accused  the  right  to  be  tried  by  a 
Court  Martial  convened  by  order  of  the  Commander-in- 
Chief? 

I  am  inclined  to  accept  the  natural  meaning  of  the  language 
used  in  Chapter  V,  Article  VI,  Section  3,  Rules  and  Regulations 
which  is  as  follows:  "  Members  of  the  National  Encampment 
and  offcers  of  the  National  Staff  shall  only  be  tried  by  Courts 
convened  by  order  of  the  Commander-in-Chief." 

No  exception  is  made  in  case  the  offense  is  committed  against 
a  Department  or  in  his  capacity  of  a  Department  officer.  And 


*  ARTICLE  VII,  CHAPTER  II. 

SECTION  3.  Posts  may  fill  any  vacancy  in  their  offices  at  any  stated 
meeting,  notice  of  such  contemplated  action  having  been  given  at  a  previous 
meeting. 

f  Re-affirmed  in  Opinion  CXIII. 


OF   THE   GRAND    ARMY    OF   THE   REPUBLIC.          141 


there  would  seem  to  be  reason  for  this  construction,  for  he  is  ac 
cused  of  an  offense  against  the  Order,  and  a  conviction  must 
affect  his  standing  as  a  member  of  the  National  Encampment. 

If  the  Department  Commander  is  the  accuser  or  prosecutor, 
the  Court  should  be  convened  by  the  Commander-in-Chief. 

It  has  been  contended  that  an  officer  may  sign  the  charges 
and  specifications  without  being  the  accuser  or  prosecutor,  but 
I  am  of  the  opinion  that  the  person  preferring  the  charges  is 
prima  facie  the  accuser,  and  that,  in  this  case,  the  Court  Mar 
tial  for  the  trial  of  Comrade  T.  upon  the  charges  and  specifica 
tions  preferred  by  Comrade  H.,  Commander  of  the  Department 
of  N—  — ,  should  be  convened  by  order  of  the  Commander- 
in-Chief. 


OPINION  CXI.     JANUARY  17,  1880. 

Department  Encampment— Past  Commanders  transferred  from  another  Department,  not  enti 
tled  to  a  seat. 

Is  a  Comrade  who  has  joined  a  Post  of  this  Department 
by  transfer,  having  previously  served  as  Commander  of  a 
Post  in  another  Department,  entitled  thereby  to  a  seat  and 
vote  in  the  Encampment  of  this  Department? 

He  is  not. 

NOTE — Same  principle  decided  in  Opinions  LXXXVII  and  LXII. 


OPINION  CXII.     JANUARY  17,  1880. 

Department  Encampment — Same  as  Opinions  CXXXVII  and  CXI. 

Can  a  Post  Commander  of  a  P^ost  in  this  Department, 
who  has  been  transferred  by  this  Post,  and  who  is£now  a 
member  in  good  standing  of  a  Post  in  an  adjoining  De 
partment,  be  admitted  to  a  seat  and  vote  in  the  Encamp 
ment  of  this  Department? 


142          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


He  can  not.  This  and  the  previous  question  (Opinion  CXI) 
are  settled  by  the  Judge  Advocate-General,  Opinion  LXXXVII, 
March  26,  1878,  which  Opinion  was  approved  by  the  National 
Encampment. 


OPINION  CXIII.     JANUARY  17,  1880. 

Department  Encampment — No  proxies. 

Can  a  Post,  where  it  is  impracticable  for  its  Representa 
tives  to  attend  the  Department  Encampment,  issue  proxies? 

It  can  not.     This  case  was  decided  by  Opinion  CIX,  January 
12,  1880. 


OPINION  CXIV.     JANUARY,  17,  1880. 

Membership — Eligibility — Service  in  the  Rebel  army  excludes. 

A  person  who,  in  the  early  part  of  the  war,  was  forced 
into  the  Rebel  service,  but  escaped  as  soon  as  possible  and 
subsequently  served  faithfully  in  the  Union  army,  desires 
to  become  a  member  of  the  Grand  Army  of  the  Republic. 
Is  he  eligible? 

Opinion  IV  of  the  Judge  Advocate-General,  rendered  August 
n,  1871,  decides  a  parallel  case  in  the  negative.  If  he  was 
forced  into  the  Rebel  service,  and  was  actually  kept  there  by  force 
until  his  escape,  it  would  seem  to  be  a  suitable  case  for  the  Na 
tional  Encampment  to  grant  relief. 

NOTE— See,  also,  Opinion  CXXXVI. 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC.  143 


OPINION  CXV.     JANUARY  31,  1881. 

Member— Re-admission  of— If  a  member  under  the  Grade  system,  it  must  be  an  application  and 

muster. 

If  an  honorable  discharge,  on  application  rind  taking  anew  the  obligation. 
Dropped  members  re-admitted. 

Does  a  Comrade,  once  initiated  in  the  Grand  Army  of 
the  Republic,  require  to  be  again  put  through  the  formula? 

Has  not  a  former  Commander  of  a  Department  the  right 
to  be  a  member  of  any  Post  of  the  Department  if  he  pays 
his  dues,  without  further  initiation? 

Does  a  former  Grand  Commander  of  the  Grand  Army 
of  the  Republic  require  an  initiation  into  the  new  Order 
provided  he  pays  his  dues? 

A  Comrade  who  has  been  Commander  of  a  Post  of  the 
Grand  Army  of  the  Republic,  and  also  Commander  of  a 
Department,  but  who  has  not  been  in  the  organization 
under  the  present  regulations,  is  now  desirous  of  attaching 
himself  to  a  Post  of  that  Department.  In  view  of  the 
fact  of  his  having  passed  through  all  the  formalities  of  ini 
tiation,  are  there  any  other  requirements  essential  for  him 
except  to  be  balloted  for  and  to  sign  the  new  Rules  and 
Regulations? 

Neither  of  these  questions  contain  the  important  information 
how  and  when  the  Comrade  ceased  to  be  a  member  of  the 
Order. 

If  a  definite  opinion  is  desired  it  would  be  well  for  a  state 
ment,  containing  all  the  essential  facts  in  the  case  under  con 
sideration,  to  be  forwarded  to  the  Judge  Advocate  of  the 
Department. 

If  the  connection  of  the  Comrade  with  the  Grand  Army  of 
the  Republic  ceased  before  the  introduction  of  the  Grade  sys 
tem,  or  during  its  continuance,  provided  he  never  took  the 
obligations  of  the  third  grade,  his  application  must  be  received 
and  acted  upon  the  same  as  if  the  applicant  had  never  belonged 


144          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 

to  the  Grand  Army.  See  Rules  and  Regulations,  Chapter  II , 
Article  II,  Section  10.* 

A  Comrade,  honorably  discharged,  can  be  re-admitted  by  filing 
a  new  application,  to  be  regularly  referred  and  reported  on,  and 
upon  receiving  a  two-thirds  vote  of  the  members  present,  and 
voting  at  a  regular  meeting,  he  shall  be  admitted  without  re- 
muster,  on  taking  anew  the  obligation. 

Chapter  II,  Article  IV,  Section  3,  Rules  and  Regulations,  and 
by  Section  4,f  members  of  disbanded  Posts  who  were  in  good 
standing  at  the  time  of  such  dissolution  shall  receive  from  the 
Assistant  Adjutant-General  of  the  Department  transfer  cards 
which  shall  have  full  force. 

It  was  decided  by  the  Judge  Advocate-General  (Opinion 
XXXV,  May  25,  1872,)  that  a  Comrade,  dropped  from  the  rolls 
of  his  Post  for  non-payment  of  dues  could  not  join  a  new  Post 
without  first  obtaining  an  honorable  discharge  from  the  Post  of 
which  he  was  previously  a  member.  It  was  also  decided  (Opin 
ion  XLII,  December  19,  1872,)  that  Comrades  dropped  from 
the  rolls  of  their  Posts  for  non-payment  of  dues,  and  desiring  to 
re-enter  the  Grand  Army,  but,  meanwhile,  the  Post  to  which 
they  formerly  belonged  having  been  disbanded,  that  they  could 
be  restored  to  membership,  by  paying  into  the  Department 
treasury  the  amount  they  owed  their  Post,  and  receiving  the 
approval  of  the  Department  Commander,  if  their  application  to 
join  an  existing  Post  or  to  be  organized  into  new  Posts. 

If  the  cases  in  question  do  not  come  within  the  general  rules 
above  referred  to,  it  will  be  necessary  to  forward  a  more  definite 
statement  of  the  facts  and  circumstances  of  each  case. 

NOTE— See,  also,  Opinions  V,  CVIII,  CXVI  and  CXX. 
*  See  this  Section  at  close  of  Opinion  V. 

t  SECTION  4,  ARTICLE  IV,  CHAPTER  II. 

SECTION  4.  Members  of  disbanded  Posts,  who  were  in  good  standing 
at  the  time  of  such  dissolution,  shall  receive  from  the  Assistant  Adjutant- 
General  of  the  Department,  transfer  cards,  which  shall  have  full  force. 

See  Section  3,  Article  IV,  Chapter  II,  at  close  of  Opinion  III. 


OF   THE    GRAND    ARMY   OF   THE    REPUBLIC.          145 


OPINION  CXVI.     FEBRUARY  24,  1880. 

Dropped  Members  of   disbanded  Posts — Department  Commander  may  organize  such  persons 

into  new  Posts,  or  approve  their  applicatian  to  join  other  Posts. 

Department  Commander — May  remove  disabilities  of  dropped  members  of  disbanded  Posts. 
Commander  of  the  Post — Can  not  call  in  question  the  standing  of  a  Charter-member. 

Certain  members  of  a  disbanded  Post,  who  had  been 
suspended  for  non-payment  of  dues,  and  subsequently 
dropped  by  authority  of  the  Department  Commander,  with 
other  persons  whose  eligibility  is  not  questioned,  became 
Charter-members  of  a  new  Post,  and,  July  14,  1879,  were 
duly  mustered,  and  A.  B.  was  elected  Post  Commander. 

At  the  annual  meeting  in  December  certain  members  of 
the  defunct  Post,  dropped  as  aforesaid,  were  elected  offi 
cers  of  the  new  Post  The  said  Post  Commander,  in  gen 
eral  orders,  declared  the  election  of  said  officers  irregular 
and  void,  on  the  ground  that,  by  their  default  while  mem 
bers  of  the  defunct  Post,  they  were  ineligible. 

The  documents,  which  include  a  re-written  statement  by  the  Department  Commander  of  any 
unpaid  dues,  and  full  authority  from  him  to  muster  the  aforesaid  officers,  are  too  voluminous  to 
be  here  inserted. 

A  Post  is  formed  by  authority  of  the  Department  Commander, 
on  the  application  of  not  less  than  ten  persons  eligible  to  mem 
bership  in  the  Grand  Army  of  the  Republic.  (Chapter  II, 
Article  II,  Section  i,  Rules  and  Regulations.) 

The  acts  of  the  Department  Commander  and  Mustering  Offi 
cer,  in  admitting  Charter-members  to  membership  in  the  Grand 
Army,  are,  to  a  certain  extent,  judicial.  They  are  required  to 
pass  upon  the  eligibility  of  the  applicants  to  membership. 

By  making  these  persons  Charter-members  of  a  new  Post,  and 
organizing  and  mustering  them,  the  Department  officers  have 
declared  that  they  are  eligible  to  membership  in  the  Grand  Army 
of  the  Republic ;  and  their  Comrades,  who  were  chartered  and 
mustered  by  the  same  authority,  can  not  impeach  collaterally, 
and  thus  overrule  the  action  of  the  Department  Commander. 
Indeed,  it  would  seem  probable  from  the  record  furnished,  that 
rejecting  dropped  members  of  the  disbanded  Post,  less  than  ten 
10 


146          OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


persons  eligible  to  membership  made  application  to  be  formed 
into  the  new  Post ;  and  that  the  legal  existence  of  the  Post, 
and  the  standing  in  the  Order  of  its  Commander  and  all  its  mem 
bers,  rest  upon  the  same  tenure  as  the  dropped  members  of  the 
defunct  Post. 

A  Comrade,  dropped  from  the  rolls  of  his  Post  for  non-pay 
ment  of  dues,  can  not  become  a  Charter-member  of  a  Post 
without  obtaining  an  honorable  discharge  from  the  Post  of  which 
he  was  previously  a  member.  Neither  can  a  Department  Com 
mander  issue  a  Charter  to  form  a  new  Post  to  members  of  an 
existing  Post  who  are  in  arrears  for  dues.  (Opinion  XXXV, 
May  25,  1872.) 

But  in  case  of  a  disbanded  Post,  the  Department  becomes  the 
successor  of  the  Post  when  it  is  dissolved,  and  inherits  its 
property  and  its  records.  If  a  member  is  in  default  he  must 
settle  with  the  Department  instead  of  his  Post,  which  has  ceased 
to  exist ;  and  the  Department  Commander,  in  his  discretion, 
may  re-admit  him  to  the  Order.  He  may  organize  such  persons 
into  new  Posts,  or  approve  their  application  to  join  other  Posts. 
(Opinion  XLII,  December  19,  1872.) 

These  persons  are  not  in  arrears  to  Post  24,  or  to  any  existing 
Post.  It  is  a  matter  between  them  and  the  Department.  The 
Department  Commander  becomes  the  administrator,  so  to  speak, 
of  a  disbanded  Post.  He  alone  has  the  authority  to  give  trans 
fer  cards  and  honorable  discharges  to  its  members.  It  is  for 
him  to  say  when  they  may  be  Charter-members  of  new  Posts, 
and  he  can  remove  their  disabilities  to  enable  them  to  join  exist 
ing  Posts. 

We  have  seen  that  upon  the  dropped  member  of  a  disbanded 
Post  making  satisfactory  settlement  with  the  Department,  it  is 
within  the  discretion  of  the  Department  Commander  to  admit 
him  as  a  Charter-member  of  a  new  Post. 

When  he  has  been  so  chartered  and  mustered,  the  presump 
tion  is  that  all  the  necessary  preliminary  steps  have  been  taken, 
and  this  presumption  is  so  far  conclusive  that  the  Commander  of 
the  new  Post  can  not  read  him  out  of  the  Order  or  ignore  his 
claims  as  a  member  of  the  Post. 


OF   THE    GRAND    ARMY   OF   THE    REPUBLIC.          147 


If  the  discretion  of  the  Department  Commander  has  been  im 
properly  exercised,  or  if  the  member  made  use  of  improper 
means  to  secure  his  restoration,  or  if  the  mustering  officer  failed 
in  his  duty,  these  violations  of  the  Rules  and  Regulations  must 
be  inquired  into  in  another  manner. 

As  to  other  members  of  the  disbanded  Post,  who  were  dropped 
for  non-payment  of  dues,  upon  the  Department  Commander  re 
admitting  them  to  the  Order,  and  approving  their  application, 
they  may  be  admitted  to  the  new  Post  as  provided  in  Section  i, 
Article  III,  Chapter  II,  Rules  and  Regulations.* 


OPINION  CXVII.     MARCH  5,  1880. 

Record — Proceedings,  presumption  in  favor  of  the  correctness. 

At  a  special  meeting  of  the  Post  certain  resolutions  were 
adopted. 

Two  objections  are  assigned — one  to  the  subject-matter 
of  the  resolutions,  the  other  to  the  legality  of  their  adop 
tion.  [The  statement  is  indefinite  and  the  resolutions  and 
accompanying  documents  are  omitted.] 

The  resolutions  seem  to  be  in  the  nature  of  a  disavowal,  and 
if  they  are  the  sentiments  of  the  Post,  legally  expressed,  I  fail 
to  see  how  they  can  be  objectionable  on  account  of  violating 
Article  XI,  Chapter  V,  Rules  and  Regulations. 

As  to  the  second  question,  I  am  not  in  possession  of  sufficient 
facts  to  show  that  such  action  could  not  legally  be  taken  at  that 
meeting,  and  every  presumption  is  in  favor  of  the  correctness  of 
the  proceedings. 

It  appears,  from  the  statement  furnished,  that  the  Post  Com 
mander  entertained  the  resolutions,  and  that  no  appeal  was  taken 
from  this  decision. 


*See  Article  III,  Chapter  II,  at  close  of  Opinion  LXXVII. 


148          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


OPINION  CXVIII.     MARCH  16,  1880. 

Dropped  member,  living  in  another  Department  than  his  own,  may  be  reinstated  in  the  Depart 
ment  in  which  he  lives. 

A  member  of  a  Post  in  the  Department  of  Massachu 
setts  dropped  for  non-payment  of  dues,  now  living  in  the 
Department  of  Connecticut,  desired  to  be  reinstated,  but 
is  unable  to  go  to  his  Post  to  be  re-obligated.  How  can 
he  be  reinstated? 

"The  Department  Commander  may,  in  certain  cases,  detail 
a  staff  officer  to  muster  applicants,  who  can  not  personally  visit 
the  Post  for  that  purpose."  (See  page  16  of  the  Manual  adopted 
at  Albany,  June  18,  1879.) 

By  Opinion  XLVIII,  of  the  Judge  Advocate-General,  April 
17,  1873,  "Whatever  right  a  Department  Commander  has  in 
his  own  Department,  the  Commander-in-Chief  has  throughout 
the  Order." 

The  member  can  remit  all  dues  to  his  Post  in  Massachusetts, 
and,  if  re-elected,  the  Commander-in-Chief,  upon  application 
by  his  Post  Commander,  forwarded  through  the  proper  channel, 
will  detail  a  staff  officer  to  re-obligate  the  Comrade,  or  direct 
the  Commander  of  the  Department  of  Connecticut  to  make  the 
necessary  detail. 


OPINION  CXIX.     MARCH   16,  1880. 

Correspondence — Military  usage. 

The  case  is  sufficiently  shown  by  the  Opinion. 

In  a  matter  between  the  Department  of  Massachusetts,  or  a 
Post  of  the  Department,  and  one  of  its  own  members,  in  which 
the  good  officers  of  a  Post  Commander,  Department  of  Connec 
ticut,  or  a  Comrade,  of  that  Department,  are  involved.  I  can 


OF   THE    GRAND    ARMY   OF   THE    REPUBLIC,          149 


not  regard  it  as  official  business,  in  which  the  correspondence 
must  follow  military  usages,  as  is  required  between  Departments 
and  Posts  in  different  Departments. 


OPINION  CXX.     MARCH   16,  1880. 

Post  Commander— Must  have  special  detail  to  re-obligate  a  member  of  another  Department. 

Has  a  Post  Commander  the  authority,  without  a  special 
detail  emanating  from  National  Headquarters,  to  muster  a 
Comrade  into  a  Post  into  another  Department,  or  to  re- 
obligate  him  after  having  been  dropped  for  non-payment 
of  dues? 

I  do  not  find  such  authority  in  the  Rules  and  Regulations  or 
in  any  decisions  approved  by  National  Encampment. 

NOTE— See  Opinions  CVIII,  CXVI  and  CXV1II. 


OPINION  CXXI.     MARCH   16,  1880. 

Post  Officers — Post  Commander — When  Commander  and  Vice-Commanders  are  absent  from 

meeting,  the  Post  elects  pro  tempore. 
When  Vice-Commanders  are  absent,  Commander  may  detail. 

The  Senior  Vice-Commander  is  temporarily  absent  from 
a  meeting  of  the  Post,  or  is  occupying  the  chair  of  the  Post 
Commander  during  his  temporary  absence.  How  is  the 
vacancy  to  be  filled,  the  By- Laws  of  the.  Post  being  silent 
upon  the  matter  ? 

Section  2,  Article  VIII,  Chapter  II,  Rules  and  Regulations, 
reads  as  follows : 


150          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


"The  Vice-Post  Commanders  shall  perform  such  duties  as  are 
required  of  them  by  the  Ritual,  and  in  the  absence  of  the  Com 
mander  shall  take  his  place  in  the  order  of  their  rank.  If  neither 
of  them  is  present,  the  Post  shall  elect  a  Commander  pro  tempore. ' ' 

Section  i,  Article  VIII,  Chapter  II,  provides  that  "it  shall  be 
the  duty  of  the  Post  Commander"  *  *  *  "to  detail  all 
officers  and  committees  not  otherwise  provided  for,"  etc. 

It  is  my  opinion  if  the  Senior  Vice-Commander  is  absent,  it  is 
within  the  discretion  of  the  Post  Commander  to  detail  a  Com 
rade  to  act  as  Senior  Vice-Commander  for  the  time  being ;  or  to 
direct  the  Junior  Vice-Commander,  if  present,  to  take  the  place 
of  the  Senior  Vice-Commander,  and  detail  a  Comrade  to  fill  the 
vacancy  thus  occasioned.  This  interpretation,  in  case  of  tem 
porary  absence,  would  save  all  unnecessary  trouble. 

The  Senior  Vice-Commander,  when  acting  as  Post  Com 
mander,  has  the  same  power  as  the  Commander  to  fill  vacancies. 


OPINION  CXXII.     APRIL  10,  1880. 

Applicant  for  membership  should  be  admitted  under  his  true  name. 

An  applicant  for  membership  in  the  Grand  Army  of  the 
Republic,  who  enlisted  in  the  army,  and  was  borne  upon 
the  rolls  of  his  regiment  under  the  name  of  Donovan,  but 
who  claims  that  his  real  name  is  O'Donnell,  desires  to  be 
mustered  under  his  true  name. 

Can  he  be  admitted  under  any  other  name  than  the  one 
by  which  he  was  borne  upon  the  muster  rolls  of  his  regi 
ment  ? 

If  otherwise  eligible  he  may  become  a  member  of  the  Grand 
Army  of  the  Republic,  and  should  be  admitted  under  his  true 
name. 

Errors  in  the  names  of  recruits  were  not  unfrequent.  Such 
errors  should  not  be  propagated  but  corrected. 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC.          151 


The  matter  of  identity  is  a  question  of  fact  to  be  determined 
by  the  Post,  after  careful  investigation,  and  upon  satisfactory  tes 
timony. 


OPINION  CXXIII.     MAY  3,  1880. 

Court  Martial — Official  rank  not  a  ground  for  challenge — Immaterial  who  prefers  the  charges. 
Specifications — Form  of;  what  they  should  contain. 

A  Court  Martial  composed  in  part  of  Comrades  who 
have  never  held  the  office  of  Post  Commander,  is  convened 
by  the  order  of  the  Department  Commander  for  the  trial 
of  a  Post  Commander  for  neglecting  to  forward  a  document 
purporting  to  be  an  appeal  or  request. 

The  document  was  presented  to  the  Post  Commander 
for  his  action  while  he  was  temporarily  absent  from  Head 
quarters  in  another  city,  and  the  charges  were  preferred  by 
a  suspended  member,  and  by  him  forwarded  to  Depart 
ment  Headquarters  direct. 

It  is  not  good  ground  for  challenge  that  a  member  of  the  Court 
has  not  held  as  high  an  office  as  the  accused. 

"  Details  for  Courts  Martial  may  be  made  from  any  Comrades 
in  the  jurisdiction  of  the  officer  ordering  the  Court." 

If  an  offense  has  been  committed,  it  is  immaterial  who  signs 
the  charges  and  specifications.  The  charges  being  adopted, 
and  the  Court  convened  by  higher  authority,  the  particular  per 
son  forwarding  them,  or  the  channel  by  which  they  reach  De 
partment  Headquarters,  is  of  no  importance. 

To  require  the  accused  to  transact  official  business  while  on  a 
journey,  the  necessity  must  be  shown  and  the  exigency  must  be 
explained  to  him. 

To  make  out  a  case  it  devolves  upon  the  prosecution  to  show 
that  the  time,  place  and  manner  of  presenting  the  document,  in 
view  of  the  existing  exigency,  were  proper  and  reasonable,  and 
that  the  document  was  of  such  character  that,  under  all  the  cir- 


152          OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


cumstances,  it  was  the  duty  of  accused,  then  and  there,  to  re 
ceive  and  forward  it. 

To  convict  a  Comrade  of  disobedience  of  the  Rules  and  Regu 
lations,  in  failing  or  refusing  to  perform  an  official  act,  the  speci 
fication  should  charge  that  he  held  the  office,  or  otherwise  state 
facts  sufficient  to  show  that  it  was  his  official  duty  to  perform  the 
act  for  the  neglect  of  which  he  is  sought  to  be  convicted. 

NOTE — See  Rules  and  Forms  for  Court  Martial,  Appendix. 


OPINION  CXXIV.     MARCH  23,  1881. 

Court  Martial — Commander-in-Chief  may  exercise  his  discretion  and  icfuse  to  convene  a  Court 
Martial. 

Is  the  Commander-in-Chief  compelled,  by  the  Rules  and 
Regulations,  to  convene  a  general  Court  Martial  whenever 
charges  are  preferred  against  any  member  or  officer  of  the 
National  Encampment,  or  can  he  exercise  the  discretion 
permitted  to  Posts  under  the  Rules  relating  to  "petty  cases" 
or  charges  "too  trivial  for  a  trial  by  Court  Martial?" 

The  .right  of  the  Commander-in-Chief  to  refuse  to  order  a 
trial  by  Court  Martial  is  one  already  recognized  by  one  of  my 
predecessors,  Judge  Advocate-General  Douglas,  in  Opinion  LXV, 
herein. 

It  is  a  privilege  accorded  to  the  regular  service,  and  is  a  right 
which  has  been  exercised  by  previous  incumbents  of  the  high 
office  on  many  occasions. 


*  RULES  FOR  COURT  MARTIAL. 

If  a  Post  deem  charges,  duly  presented,  too  trivial  for  trial  by  Court 
Martial,  yet  requiring  investigation,  upon  a  motion  duly  made,  and  adopted 
by  a  majority  vote  of  the  Post,  the  Post  Commander  shall  appoint  a  court 
of  inquiry,  of  three  or  five  Comrades  in  good  standing,  to  whom  the  matter 
shall  be  referred,  with  authority  to  make  such  examination  as  may,  by  them, 
be  deemed  necessary,  reporting  in  writing,  at  the  earliest  date,  their  findings 
and  recommendations  thereon  for  the  action  of  the  Post. 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC.          153 


There  is  no  paragraph  in  the  Rules  and  Regulations  which 
conflicts  with  this  view  of  the  case. 

Were  it  otherwise,  no  Comrade  would  be  secure  against  trial 
by  Court  Martial  on  some  trivial  charge,  the  expense  of  which 
trial  would  seriously  deplete  the  treasury  and  accomplish  no 
good. 

The  Rules  on  Court  Martial  referred  to  on  page  —  are  evi 
dently  intended  to  give  to  Posts  a  power  which  did  not  therein 
exist,  and  have  no  bearing  upon  the  authority  of  the  Com- 
mander-in-Chief. 

It  is  a  rule  of  military  law  that  subordinate  officers,  in  for 
warding  charges  and  specifications,  should  examine  the  papers 
carefully  before  giving  their  endorsement,  to  the  end  that  only 
such  charges  should  be  considered  as  bear  unmistakable  evidence 
that  a  serious  offense  against  discipline  or  a  grave  crime  has 
been  committed. 

This  implies  the  right  of  a  Department  Commander  to  return 
charges  which  are  "too  trivial,"  or  the  trial  of  which  would 
prove  detrimental  to  the  Order.  And  of  course  the  same  power 
in  a  higher  degree  must  rest  with  the  Commander-in-Chief. 

I  answer,  then,  that  the  Commander-in-Chief  may  use  his 
own  discretion  as  to  whether  a  general  Court  Martial  shall  be 
ordered  or  not. 


OPINION  CXXV.     AUGUST  29,  1881. 

Court  Martial— In  matters  that  have  no  connection  with  the  Grand  Army  of  the  Republic, 
Court  has  no  jurisdiction. 

As  members  of  a  "  Veteran  Association,"  two  Comrades 
of  the  Grand  Army  of  the  Republic  have  become  involved 
in  a  dispute  over  the  rightful  custody  of  certain  property 
which  belongs  to  the  said  association  of  veterans.  In  that 
dispute  recourse  has  been  had  to  the  civil  courts  by  process 
of  attachment,  and  the  property  has  now  been  recovered 
by  the  association. 


154          OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


As  a  result  of  the  dispute,  charges  are  preferred  by  one 
of  the  Comrades  against  the  other,  charging,  among  other 
things,  perjury.  The  Comrade  charged  is  a  member  of 
the  National  Encampment,  and  the  charges  are  sent  for 
ward  for  trial  by  a  general  Court  Martial. 

This  quarrel,  it  seems  to  me,  is  one  to  be  settled  without  ap 
peal  to  the  Grand  Army  of  the  Republic.  It  has  no  reference 
whatever  to  the  Grand  Army  of  the  Republic ;  and  if  the  crime 
of  perjury  has  been  committed  and  a  Comrade  has  been  injured 
thereby,  the  proper  place  to  take  the  case  is  to  a  criminal  court. 
If  the  charge  can  be  sustained,  then  evidence  of  that  conviction 
will  be  a  sufficient  ground  for  action  by  Court  Martial ;  until 
then,  the  Grand  Army  of  the  Republic  has  no  right  to  interfere. 

I  recommend  that  the  charges  be  dismissed. 


OPINION  CXXVI.     NOVEMBER  22,  1881. 

Membership  eligibility — If  the  person  can  be  identified  as  the  soldier  certified  to  by  the  Adju 
tant-General. 

How  can  a  soldier  be  identified  as  entitled  to  member 
ship  under  Article  IV,  Chapter  I,  not  having  been  mustered 
into  the  United  States  army,  and  having  no  discharge?* 

If  the  regiment  to  which  he  belonged  was  placed  under  the 
orders  of  United  States  general  officers,  a  certificate  from  the 
Adjutant-General  of  the  State  to  that  effect,  and  a  certificate  that 
he  served  in  that  regiment,  would  be  sufficient  evidence  for  an 
examining  committee  ;  provided,  of  course,  the  applicant  can  be 
properly  identified  as  the  soldier  certified  to  by  the  Adjutant- 
General. 

*  See  Opinion  CXXXI  and  CXXXII. 


OF  THE   GRAND   ARMY   OF   THE    REPUBLIC.          155 


OPINION  CXXVII.     DECEMBER   17,  1881. 

Department  Encampment — Can  be  no  proxy — Offices — A  Comrade  may  hold  official  position 
in  Department  and  in  Post. 

A  Comrade  holding  an  appointment  as  Judge  Advocate 
of  a  Department  is  elected  Commander  of  his  Post.  Can 
he  be  present  at  an  Encampment  of  the  Department  as 
Judge  Advocate,  and  yet  be  considered  as  absent  as  Post 
Commander,  so  that  the  Post  can  be  represented  by  the 
Senior  Vice-Commander  or  the  Junior  Vice-Commander  ? 

The  language  of  the  amendment  adopted  at  Indianapolis  (see 
page  799  of  Journal)  is  plain,  and  its  purpose  well  understood. 

The  Comrade  can  elect  to  hold  both  positions,  but  upon  the 
roll-call  he  can  vote  but  once. 

If  he  is  present  and  voting  as  Judge  Advocate,  he  can  not  be 
"considered"  absent  in  order  to  add  one  vote  by  proxy.  The 
Post  could  have  taken  care  of  its  own  representation  by  electing 
another  Comrade  Commander,  or  the  Comrade  elected  could 
have  resigned  in  time  to  fill  the  vacancy. 

I  am  clearly  of  the  opinion  that  the  language  of  the  amend 
ment  admits  of  a  literal  construction,  and  that  no  Comrade  can 
be  represented  by  proxy  who  is  present  in  the  Encampment. 

NOTE— See  Opinions  CVII  and  CIX. 


OPINION  CXXVIII.     DECEMBER  24,  1881. 

Office — One  who  resides  outside  the  limits  of  his  own  Department  is  eligible. 

Is  a  Comrade  who  resides  outside  of  the  territorial  circuits 
of  his  own  Department  eligible  to  office? 

So  long  as  he  remains  in  good  standing  in  his  Department 
there  can  be  no  doubt  of  his  eligibility  to  office.  There  is  noth 
ing  in  the  Rules  and  Regulations  requiring  a  Comrade  to  reside 
within  his  Department. 


156          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 

OPINION  CXXIX.     JANUARY  28,  1882. 

Provisional  Department  Commander — Not  entitled  to  a  seat  in  Department  Encampment. 

Is  a  Comrade  entitled  to  a  seat  in  Department  Encamp 
ment  by  virtue  of  having  been  a  Provisional  Department 
Commander? 

Section  i,  Article  X,  Chapter  V,  Rules  and  Regulations,*  pro 
vides  for  the  appointment  of  officers  of  Provisional  Departments, 
and  the  last  paragraph  contains  these  words:  "The  officers  thus 
appointed  shall  have,  for  the  time  being,  all  the  duties  .and  pow 
ers  of  permanent  officers." 

It  is  the  evident  intention  of  this  paragraph  that  when  the  Pro 
visional  Department  becomes  merged  in  the  Permanent  Depart 
ment, 'the  powers  and  duties  of  all  appointed  officers  shall  cease ; 
consequently  the  Provisional  Commander  can  not  be  recognized 
by  the  new  Department  Encampment,  or  permitted  to  enjoy  the 
privileges  of  a  Past  Commander.  It  is  also  evident  from  the 
language  of  Paragraph  i,  Article  II,  Chapter  III,  that  only  Past 
Department  Commanders  who  have  been  elected  for  a  term,  or 
to  fill  a  vacancy,  are  entitled  to  membership  in  Department  En 
campment  ;  and  as  the  Rules  and  Regulations  are  very  explicit 
in  determining  what  shall  constitute  membership  in  such  En 
campments,  and  Past  Provisional  Commanders  are  not  specially 
provided  for,  I  can  see  no  reason  why  they  should  be  admitted. 

I  therefore  answer  the  question  in  the  negative. 


OPINION  CXXX.     MARCH  15,  1882. 

Posts — Consent  of  an  existing  Post  not  necessary  for  the  organization  of  a  new  Post. 

Can  a  Post  of  the  Grand  Army  of  the  Republic  be  estab 
lished  in  a  town  or  city  where  a  Post  already  exists  without 


*  See  Opinions  XXVII. 


OF  THE    GRAND    ARMY    OF   THE    REPUBLIC.          157 


the  petitioners  first  obtaining  the  consent  of  the   Post  al 
ready  established? 

The  Rules  and  Regulations  of  the  Grand  Army  of  the  Repub 
lic  have  vested  in  the  Department  Commander  the  power  to 
grant  Charters  to  Posts,  and  there  is  no  provision  anywhere 
requiring  the  permission  of  existing  Posts  to  be  first  gained. 

It  is  not  improper  for  a  Department  Commander  to  ascertain 
whether  the  good  of  the  Order  will  be  best  conserved  by  reject 
ing  an  application  for  a  Charter,  and  he  may  apply  to  an  existing 
Post  for  information  ;  but  the  entire  responsibility  of  his  action 
must  rest  with  him,  and  he  may  grant  or  reject  an  application 
without  reference  to  any  existing  Post. 


OPINION  CXXXI.     JULY  20,  1882. 

Eligibility  to  Membership — Enlistment  without  muster  into  the  service  not  sufficient. 

Commission  without  muster  not  sufficient. 

Quartermaster's  clerk  not  eligible. 

Being  a  scout  without  being  mustered  not  sufficient. 

Enlistment,  muster  and  honorable  discharge,  absolutely  necessary. 

In  the  autumn  of  1863  I  enlisted  with  Captain  E.  M. 
Colver  in  the  Third  Ohio  Volunteer  Cavalry,  but  before 
mustering  under  that  enlistment  I  was  commissioned  as 
Recruiting  Lieutenant  in  the  Ninth  Ohio  Volunteer  Cav 
alry,  and  was  engaged  in  that  work  for  several  months.  I 
was  unable  to  pass  muster  by  reason  of  rupture.  I  then 
went  into  the  Quartermaster's  department  as  a  clerk.  I 
subsequently  volunteered  as  a  scout,  and  in  these  positions 
served  until  the  close  of  the  war.  During  this  service  I 
was  twice  captured  by  the  Confederate  forces,  and  each 
time  made  my  escape.  Am  I  eligible  to  membership  in 
the  Grand  Army  of  the  Republic? 

The  within-named  is  not  eligible  to  membership  in  the  Grand 
Army  of  the  Republic  for  the  following  reasons : 


158          OPINIONS    OF    JUDGE   ADVOCATES-GENERAL 


First — Article  IV,  Chapter  I,  Rules  and  Regulations,  on  eligi 
bility  to  membership,  says,  "Soldiers  and  sailors  of  the  United 
States  army,  etc."  *  This  implies  that  the  party  must  be  regu 
larly  enlisted  and  mustered  into  the  service.  This  party  was  never 
mustered  in. 

Second — Holding  a  commission  is  not  sufficient  without  a  mus 
ter  into  the  service.  (Opinion  XXVI,  March  29,  1879.) 

Third — Being  a  Quartermaster's  clerk  does  not  render  a  party 
eligibile  to  membership  in  the  Grand  Army  of  the  Republic. 
(Opinion  L,  April  25,  1873.) 

Fourth — Being  a  scout  does  not  entitle  one  to  membership, 
unless  the  party  was  enlisted  and  mustered.  (Opinion  XVII, 
December  5,  1871.) 

In  conclusion,  nothing  can  take  the  place  of  enlistment  and 
muster-in  to  render  a  person  eligible  to  membership  in  the  Grand 
Army  of  the  Republic,  because  there  can  be  no  "  honorable  dis 
charge,"  without  a  previous  muster-in.  (See  Opinion  CXXXII.) 


OPINION  CXXXII.     JULY  31,  1882. 

Eligibility  to  Membership — Muster-in  to  the  service  absolutely  necessary. 
Honorable  discharge  necessary. 

Alfred  E.  Lewis  served  as  a  musician  in  Company  I,  One 
Hundred  and  First  New  York  Volunteers,  through  Penin 
sular  campaign  and  at  second  battle  of  Bull  Run,  but  was 
never  mustered  on  account  of  his  age — thirteen.  Can  he 
become  a  member  of  the  Grand  Army  of  the  Republic? 

Two  things  are  requisite  to  membership  in  the  Grand  Army  of 
the  Republic : 

First — He  must  be  either  a  soldier  or  sailor  of  the  United 
States  army  or  navy  or  marine  corps,  or  of  a  State  regiment,  etc. 

*  See  Opinion  IV. 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC.          lf>9 


Muster-in  is  imperative  in  order  to  be  a  soldier.  A  citizen  is 
not  subject  to  orders  of  any  United  States  army  officer. 

Second — Every  applicant  for  admission  must  have  an  honora 
ble  discharge  from  one  or  the  other  of  these  branches  of  the 
service.  (See  Article  IV,  Chapter  I,*  Rules  and  Regulations, 
and  Section  i,  Article  II,  Chapter  II.) 

Although  the  party  herein  named  may  have  rendered  the  ser 
vice  claimed,  yet  he  can  not  be  admitted  to  membership  in  the 
Grand  Army  of  the  Republic  for  the  reason  that  he  was  never 
mustered  into  the  service ;  not  being  mustered,  was  not  subject 
to  order's,  as  provided  in  Article  IV,  Chapter  I,  and  not  being 
mustered,  of  course  never  received  an  "honorable  discharge." 
(See,  also,  Opinion  CXXXI.) 


OPINION  CXXXIII.     AUGUST  12,  1882. 

Eligibility  to  membership— Persons  though  under  the  required  age  when  enlisted  and  mustered 
into  the  service  are  eligible — Discharge  by  reason  of  habeas  corpus  is  sufficient. 

Two  soldiers  were  duly  mustered  into  the  United  States 
service,  but  not  being  of  the  required  age,  were  by  their 
parents  taken  out  on  a  writ  of  habeas  corpus,  after  a  short 
service.  Are  they  eligible  to  membership?  One  is  a 
Charter-member  of  the  Post. 

A  strict  construction  of  Article  IV,  Chapter  I,  Rules  and  Reg 
ulations,  might  exclude  the  parties  from  membership.  But  as 
they  were  duly  mustered  into  the  service,  and  were  for  a  time, 
subject  to  the  orders  of  United  States  officers,  that  part  of  the 
requirements  of  said  Section  was  complied  with. 

The  next  question  to  be  answered  is :  Does  the  order  of  the 
Court  in  the  habeas  corpus  proceedings  take  the  place  of  a  dis 
charge?  The  fact  that  they  afterwards  rendered  service  in  the 
army  as  soldiers,  though  not  then  mustered  in,  tends  to  show 


*  See  Opinion  IV. 


160          OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 


that  they  did  not  of  their  own  motion  seek  to  be  released  by  pro 
cess  of  the  Courts.  Adopting,  therefore,  a  liberal,  and  I  think  a 
just  construction  of  the  law,  I  say  they  are  eligible  and  should  be 
admitted. 


OPINION  CXXXIV.     AUGUST  12,  1882. 

Countersign  may  be  communicated  at  another  place  than  at  a  regular  meeting  of  the  Post. 

Can  the  countersign  be  communicated  at  any  place  other 
than  at  a  regular  Post  meeting,  and  if  so,  how? 

In  the  Post,  when  in  session,  the  O.  D.  communicates  the 
countersign  by  order  of  the  Post  Commander.  The  Post  Com 
mander,  by  virtue  of  his  office,  may,  and  should  when  occasion 
demands  it,  communicate  the  countersign  to  a  Comrade  in  good 
standing,  either  at  a  meeting  of  the  Post  or  outside  of  the  Post. 
Comrades  are  entitled  to  receive  the  countersign  from  the  Post 
Commander  whenever  and  wherever  the  occasion  may  demand 
their  use  of  it.  (See  Opinion  CXLI.) 


OPINION  CXXXV.     AUGUST  12,  1881. 

Department  Council  of  Administration — Transfer  card  good  for  one  year,  and  a  Comrade  who 
holds  a  transfer  card  not  yet  expired  may  hold  his  seat  as  a  member  of  the  Department 
Council  of  Administration. 

Comrade  N.  applied  for  and  received  transfer  card  from 
his  Post  sometime  during  the  second  quarter  of  1882.  He 
was  a  member  of  Department  Council  of  Administra 
tion,  and  attended  Department  Encampment  after  the 
transfer  was  granted  him.  Comrade  D.  objected  to  Com 
rade  N.  acting  with  Council,  giving  as  reasons  therefor  the 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC.    1()1 


fact  that  Comrade  N.  having  taken  transfer  card  was  a 
member  of  the  Grand  Army  of  the  Republic  at  large,  and 
therefore  not  a  member  of  the  Department. 

The  objection  was  overruled,  and  on  this  ruling  appeals. 

The  objection  is  not  well  taken,  and  the  ruling  of  the  Depart 
ment  Commander  should  be  sustained.  There  is  no  such  thing 
as  a  "member  of  the  Grand  Army  of  the  Republic  at  large." 
Section  2,  Article  IV,  Chapter  II,  Rules  and  Regulations,*  de 
fines  the  transfer  card  and  the  standing  of  the  Comrade  holding 
transfer  card.  He  is  subject  to  the  Post  issuing  the  transfer  card, 
"for  the  purpose  of  discipline;"  the  transfer  card  is  valid  for 
one  year.  During  all  that  year  he  is  a  member  of  the  Grand 
Army  of  the  Republic.  He  has  the  entire  year  in  which  to  de 
posit  that  card.  He  could  be  tried  for  violation  of  Rules  and 
Regulations  at  any  time  within  that  time.  Where?  Within  that 
Department  and  by  the  Post  issuing  card,  and  no  place  else. 
At  the  end  of  the  year,  and  not  till  then,  does  he  cease  to  be  a 
member  of  that  Department  and  of  the  Order,  though  not  an 
active  member  of  the  Post  from  date  of  card. 

The  Comrade  referred  to  herein  was  within  the  limit,  and 
while  not  an  active  member  of  the  Post,  was  to  all  intents  and 
purposes  a  member  of  the  Grand  Army  of  the  Republic  of  that 
Department,  and  entitled  to  his  seat  in  the  Department  Encamp 
ment. 

NOTE— See  Opinions  XII,  LXXXVII. 


OPINION  CXXXVI.     SEPTEMBER   15,  1882. 

Eligibility — Service  in  the  Rebel  army  from  whatever  cause,  renders  one  ineligible  to  member 
ship  in  the  Grand  Army  of  the  Republic. 

Richard  M.  Jones  was  impressed  into  the  Rebel  army  in 
Tennessee  in  1861,  being  of  that  State.      In  the  spring  of 


*See  Section  2,  Article  IV,  Chapter  II,  at  close  of  Opinion  III. 
I  I 


162          OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 

1862,  his  command  marching  through  Kentucky,  he  de 
serted,  came  to  Indiana  and  immediately  enlisted  in  the 
Eightieth  Regiment  Indiana  Volunteers,  and  served  until 
near  the  close  of  the  war,  when  he  was  discharged  on 
account  of  wounds  received  in  battle  and  in  line  of  duty. 
He  claims  that  he  had  to  enter  the  Rebel  army  or  hang ; 
that  he  was  closely  watched,  but  deserted  at  the  first 
opportunity.  He  is  a  worthy  citizen,  and  the  Comrades 
where  he  resides  (Rising  Sun)  say  as  loyal  a  citizen  as 
lives.  Can  anything  be  done  for  him  in  the  way  of  admit 
ting  him  to  membership? 

Article  IV,  Chapter  I,  page  4,  Rules  and  Regulations,  says 
very  emphatically  " No  person"  etc.  No  exception  is  made  to 
the  rule.  This  question  has  been  before  the  National  Encamp 
ment  ever  since  1872.  The  Judge  Advocate-General,  in  August, 
1871,  decided  that,  although  the  service  was  involuntary,  still  it 
did  not  constitute  the  case  an  exception  to  the  rule,  and  that  the 
applicant  was  ineligible.  This  decision  still  remains  unaltered. 
I  think  this  the  only  safe  rule,  as  laid  down  in  Article  IV,  above 
referred  to.  It  may  seem  harsh,  in  a  case  like  this,  but  if  the 
door  is  once  opened  there  is  too  much  opportunity  given  for  un 
worthy  persons  to  make  statements  of  involuntary  service,  etc., 
which,  at  this  late  date,  could  not  be  controverted,  even  though 
untrue. 

NOTE— See  Opinions  IV  and  CXIV. 


OPINION  CXXXVII.     SEPTEMBER  15,  1882. 

Application  for  membership  on  transfer  card  -Must  be  by  a  regular  application. 
Transfer  card  should  accompany  the  application. 

A  Comrade  from  another  Post,  having  a  transfer  card, 
being  present  at  a  meeting  of  this  Post,  wished  to  join  this 
Post  on  his  transfer  card.  The  rules  being  suspended, 


OF   THE   GRAND    ARMY    OF  THE   REPUBLIC.          163 


motion  was  made  that  he  be  accepted.  The  motion  was 
put  by  the  Post  Commander  and  carried  under  the  head  of 
"Good  of  the  Order"  by  viva  vocc  vote.  The  question 
was  raised  as  to  the  legality  of  the  admission  of  the  Com 
rade. 

A  Comrade  having  a  valid  transfer  card,  and  applying  for 
membership  to  a  Post  otlier  than  the  one  which  granted  the 
transfer  card,  must  have  his  name  "proposed,"  that  is,  must 
make  a  regular  application,  have  it  referred  and  reported  on,  as 
in  case  of  any  applicant  for  membership.  (Section  i,  Article 
III,  Chapter  II,  page  7,  Rules  and  Regulations.*) 

The  transfer  card  should  accompany  the  application. 

Election  to  membership  on  application  on  transfer  card  may 
be  by  ballot  or  viva  voce.  (Paragraph  2,  Opinion  LXXVIII.) 
I  do  not  see  any  law  for  viva  voce  vote  save  the  Opinion  referred 
to,  but  this  having  been  approved  by  the  National  Encampment 
is  law  until  changed  by  the  National  Encampment. 


OPINION  CXXXVIII.     SEPTEMBER   15,  1882. 

Membership — Application  for — Ballot  must  be  taken  after  the  investigating  committee  has 
reported. 

Where  the  decision  of  the  Post  Commander  is  in  violation  of  the  Regulations,  a  vote  of  the  Post 
to  sustain  him  does  not  cure  the  error. 

Application  can  not  be  withdrawn  after  investigating  committee  makes  report,  even  by  unani 
mous  consent  of  the  Post. 

An  application  for  membership  is  made  in  regular  form, 
the  investigating  committee  made  its  report  to  the  Post, 
the  ballot  is  about  to  be  taken,  when  a  Comrade,  -friend  of 
the  applicant,  believing  the  applicant  will  not  be  elected, 
asks  to  withdraw  the  application ;  appellant  objects  to  per 
mission  being  granted  for  the  reason  that  it  was  in  violation 


*  See  Opinion  LXXVIII,  and  Section  I,  Article  III,  Chapter  II,  at  close  of 
Opinion. 


164          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 

of  Section  4,  Article  II,  Chapter  II,  Rules  and  Regula 
tions.*  The  Post  Commander,  over  the  objection,  granted 
the  withdrawal  of  the  application,  giving  as  a  reason  for  so 
doing  that  ' '  the  applicant  was  unworthy  to  become  a 
member  of  the  Grand  Army  of  the  Republic,  it  having 
been  ascertained  that  applicant  had  been  a  member  of  the 
Missouri  militia  in  1861."  Appeal  was  taken  from  decision 
of  Post  Commander  to  the  Post,  based  on  Opinion  XVI, 
August  2,  i878,t  Page  3,  Manual  1881,  Paragraph  20. 
Chair  sustained  by  vote  of  14  to  9  contra.  Post  Com 
mander  bases  his  decision  on  Opinion  XV,  page  27,  Man 
ual  i88i.J 

Should  the  Post  Commander  have  permitted  the  with 
drawal  of  the  application? 

The  Judge  Advocate  of  the  Department  from  which  this 
case  comes  and  to  whom  it  was  first  referred  by  Depart 
ment  Commander,  says  the  case  presents  a  purely  par 
liamentary  question,  and  says,  "When  application  was 
presented  the  Post  was  possessed  of  the  subject-matter. 
When  it  was  referred  to  a  committee,  committee  pos 
sessed  of  the  subject-matter.  The  application  could  not 
be  withdrawn  without  the  consent  of  the  Post.  With  that 
consent  it  could  be  withdrawn  up  to  the  time  of  taking  the 
ballot.  The  Post  Commander  decided  that  it  could  be 
withdrawn.  This  was  erroneous,  but  the  appeal  from  the 
decision  of  the  Post  Commander  to  the  body  and  the  vote 
of  the  body  to  allow  the  withdrawal  cured  the  error,  unless 
there  is  shown  to  have  been  thereby  violated  a  constitution 
or  a  law . ' ' 


*  See  Article  II,  Chapter  II,  at  close  of  Opinion  XI. 
t  Opinion  LXXXIX. 
J  Opinion  XV  herein. 


OF   THE   GRAND    ARMY   OF   THE    REPUBLIC.          165 


There  is  but  one  question  to  be  decided  in  this  appeal,  /.  <?. 
must  the  ballot  be  taken  after  the  report  of  the  investigating 
committee  has  been  made  to  the  Post? 

Yes.  Section  4,  Article  II,  Chapter  II,  Rules  and  Regulations, 
says,  after  the  reading  of  the  report  and  opportunity  is  given  for 
stating  objections  to  the  candidate,  "  ballot  with  ball  ballots  shall 
be  had."  The  language  is  mandatory,  emphatic,  plain,  and  the 
action  of  the  Commander  violated  this  law,  and  the  Post  could 
not  cure  the  violation  by  sustaining  his  decision. 

The  application  could  not  have  been  withdrawn  even  by  the 
unanimous  consent  of  the  Post,  much  less  when  an  objection  to 
its  withdrawal  was  raised.  It  was  purely  a  question  of  law,  and 
not  of  parliamentary  usage. 

If  the  candidate  was  unworthy,  as  stated  by  the  Post  Com 
mander,  all  the  more  necessity  for  taking  the  ballot  and  reporting 
it  to  National  Headquarters,  as  provided  in  Section  6,  Article  II, 
Chapter  II,  for  the  protection  of  the  Order. 


OPINION  CXXXIX.     SEPTEMBER,  1882.- 

Badge — Is  personal  property,  but  should  only  be  worn  by  actual  members  of  the  Grand  Army 
of  the  Republic. 

Has  an  honorably  discharged  member  of  the  Grand 
Army  of  the  Republic  the  right  to  wear  the  badge  of  the 
Order  at  any  time  after  his  discharge? 

The  badge  of  the  Grand  Army  of  the  Republic  is  strictly  a 
membe?'ship  badge  only,  and  denotes  that  the  party  wearing  it  is 
an  actual  member,  and  properly  should  be  worn  only  by  active 
members  of  the  Order.  However,  the  badge  is  the  personal 
property  of  the  Comrade,  and  if  he  be  honorably  discharged,  or 
otherwise  ceases  to  be  an  active  member,  and,  having  a  badge, 
wears  it,  I  know  of  no  way  to  prevent  it. 


166          OPINIONS    OF   JUDGE   ADVOCATES-GENERAL 


OPINION  CXL.     OCTOBER   16,  1882. 

Members  of  the  Grand  Army  of  the  Republic  and  ex-Rebel  soldiers  can  not  be  placed  on  the 

same  footing. 
Funds  can  not  be  used  for  the  support  of  ex-Rebel  soldiers. 

Can  the  Grand  Army  of  the  Republic,  or  any  Department 
Post  thereof,  consistently  with  the  principles  of  the  Order, 
aid  in  establishing  or  maintaining  a  Veteran  Home,  to 
which  Mexican  war  veterans,  who  served  in  the  Rebel  army 
or  navy,  can  be  admitted  to  equal  rights  with  Union  soldiers? 

The  Grand  Army  of  the  Republic  was  organized  for  soldiers, 
sailors  and  marines  who  united  to  suppress  the  late  Rebellion. 
(Paragraph  i,  Article  II,  Chapter  I,  Rules  and  Regulations.) 

To  assist  such  former  Comrades  as  need  help  and  protection. 
(Paragraph  2,  Article  II,  Chapter  I,  Rules  and  Regulations.) 

To  discountenance  whatever  tends  to  weaken  loyalty.  (Para 
graph  3,  Article  II,  Chapter  I,  Rules  and  Regulations.) 

The  Grand  Army  of  the  Republic  offers  a  premium  to  disloy 
alty  whenever  it,  as  an  Order,  undertakes  to  provide  for  the 
maintenance  of  men  who  served  in  the  Rebel  army. 

No  person  is  eligible  to  membership  who  at  any  time  bore 
arms  against  the  United  States.  (Article  IV,  Chapter  I,  Rules 
and  Regulations.)  If  not  eligible  to  membership,  then  the  Grand 
Army  of  the  Republic  should  not  be  taxed  to  aid  or  support  them. 

I  know  of  no  principle  of  the  Grand  Army  of  the  Republic 
whereby  Rebel  soldiers  can  be  placed  on  an  equal  footing  with 
loyal  soldiers  in  any  charitable  institution  of  the  Order.  On  the 
contrary,  all  the  teachings  of  the  Grand  Army  of  the  Republic 
are  that  loyalty  to  the  Government  from  1861  to  1865  with  ser 
vice  in  the  Union  army,  is  to  be  our  only  guide  in  the  chanties 
of  the  Order. 

If  any  Department,  in  its  magnanimity,  should  wish  to  aid  ex- 
Confederate  soldiers,  it  must  be  done  in  the  way  of  voluntary  aid, 
and  from  funds  outside  of  the  general  or  special  muds  of  the  Or 
der;  in  other  words,  by  the  voluntary  contributions  of  individual 
members  of  the  Grand  Army  of  the  Republic. 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC.  167 


OPINION  CXLI.     OCTOBER   16,  1882. 

Countersign — Commander  may  give  the  countersign  to  a  Comrade  before  the  opening  of  the 
Post  meeting.  Post  Commander  must  be  the  judge  as  to  whether  or  not  the  occasion 
demands  that  it  should  be  given. 

Whether  a  Commander  at  a  regular  meeting  of  the  Post 
and  previous  to  the  opening,  has  any  right  to  withhold  the 
countersign  from  a  Comrade  in  good  standing? 

This  query,  in  substance,  was  answered  in  a  decision  rendered 
August  12,  1882.  The  matter  then  came  to  this  office  through 
the  Adjutant-General  from  Comrade  Miller,  of  Prescott  Post,  No. 
i,  Department  of  Rhode  Island.  The  decision  at  that  time  made 
was  on  the  following  question:  "Can  the  countersign  he  com 
municated  at  any  place  other  than  at  a  regular  Post  meeting,  and 
if  so,  how?  The  decision  was  set  forth  in  Opinion  CXXXIV. 

This  query  is  not  very  greatly  different  from  the  one  on  which 
the  foregoing  decision  was  based.  I  have  no  alteration  to  make 
in  the  decision  as  then  rendered,  but  will  add  that  the  Post  Com 
mander  must  be  the  judge  as  to  whether  or  not  the  "  occasion 
demands"  that  it  should  be  given.  For  instance,  if  a  Comrade 
known  to  be  in  good  standing  is  about  to  go  on  a  journey  before 
the  regular  meeting  of  his  Post  will  take  place,  and  make  that 
fact  known  to  his  Post  Commander,  I  think  the  Comrade  is  en 
titled  to  receive,  and  should  receive,  the  countersign  from  the 
Post  Commander.  I  cite  this  as  only  one  instance  out  of  many 
that  might  be  given.  The  good  sense  of  the  Post  Commander, 
on  a  statement  of  the  facts,  ought  to  be  able  to  determine  whether 
the  'l  occasion  demands  "  that  it  should  be  given.  You  can  not 
apply  strict  military  rules  to  the  Grand  Army  of  the  Republic. 
This  is  an  organization  for  mutual  aid  and  for  the  benefit  of  the 
Comrades  in  the  nature  of  other  benevolent  and  charitable  or 
ganizations,  and  if  you. apply  the  strict  military  rules  that  gov 
erned  in  the  army  you  impair  the  objects  of  the  Order. 


168          OPINIONS    OF   JUDGE    ADVOCATES-GENERAL 

OPINION  CXLII.     OCTOBER   16,  1882. 

Ballot  for  reinstatement  should  be  by  ball  ballot. 

The  Post  Commander,  after  the  committee  had  reported 
on  the  application  of  a  candidate  for  reinstatement,  ordered 
a  written  ballot.  From  this  order  an  appeal  was  taken. 
Should  the  ballot  have  been  by  ball  or  written  ballot? 

There  can  be  but  one  mode  of  balloting  for  candidates  or  ap 
plicants  for  admission  or  readmission  to  the  Grand  Army  of  the 
Republic.  That  is  by  ball  ballots.  See  Section  4,  Article  II, 
Chapter  II,  Rules  and  Regulations.  The  entire  subject  is  plainly 
worded  in  Articles  II  and  III  of  this  Chapter  (II)  and  in  Section 
4,  Article  IV  of  Chapter  V.  The  voting  there  referred  to  applies 
to  the  election  of  a  Comrade  to  readmission,  and  the  ballot  re 
ferred  to  can  only  be  interpreted  by  Section  4,  Article  II,  Chap 
ter  II,  a  ball  ballot. 

NOTE — See  Article  III,  Chapter  II,  and  Section  4,  Article  IV,  Chapter  V,  at  close  of  Opinion 
LXXVIII. 


OPINION  CXLIII.     MARCH   14,  1883. 

Dismissal — Must  be  by  Court  Martial. 

Court  Martial — The  defendant  must  be  in  such  position  that  he  may  have  the  ability  to  attend 
the  trial,  if  he  so  desires,  before  a  Court  can  have  jurisdiction. 

Can  a  member  of  the  Grand  Army  of  the  Republic  who 
has  been  convicted  of  a  crime,  sentenced  to  imprisonment, 
and  while  serving  his  sentence  be  dishonorably  discharged, 
without  sentence  of  a  Court  Martial?  If  not.  can  he  be 
tried  by  Court  Martial? 

A  dishonorable  discharge  comes  by  sentence  of  a  Court  Mar 
tial.  No  Court  Martial  can  try  any  member  of  the  Grand  Army 
of  the  Republic  who  is  absent  and  unable  to  appear  before  the 
Court  by  reason  of  confinement  under  sentence  of  any  civil  tri 
bunal  or  court.  While  the  Rules  and  Regulations  of  the  Grand 


OF    THE    GRAND    ARMY    OF    THE   REPUBLIC.          169 


Army  of  the  Republic  are  silent  on  this  question,  we  must  be 
governed  by  the  civil  and  criminal  law  of  the  land,  and  under 
that,  even  a  civil  cause  in  which  the  accused  is  interested  could 
not  be  tried  while  he  is  in  confinement  under  sentence,  much 
less  could  a  criminal  charge  be  tried  and  determined.  Charges 
may  be  preferred,  but  no  trial  can  be  had  until  he  is  in  such 
position  that  he,  when  legally  summoned  to  appear  before  the 
Court  Martial,  may  have  the  ability  to  attend  if  he  so  desires. 


OPINION  CXLIV.     MARCH  24,  1883. 

Per  Capita  Tax — When  assessed. 
By-Laws — Change  of. 

First — Is  Article  II  of  the  By-Laws  of  the  Department 
of  Illinois  which  reads  "Article  II,  Per  Capita  Tax — The 
per  capita  tax  shall  be  eight  cents  per  quarter  on  each 
member  reported  in  good  standing  by  each  Post,  to  be  for 
warded  with  Post  Adjutant's  and  Quartermaster's  reports 
on  the  first  days  of  January,  April,  July  and  October," 
in  conflict  with  Section  2,  Article  III,  Chapter  V,  Rules 
and  Regulations? 

It  is  not.  Section  2,  Article  III,  Chapter  V,  Rules  and  Regu 
lations  says  that  each  Department  Encampment,  at  its  session  in 
January,  shall  assess  a  per  capita,  etc.  The  foregoing  By-Law 
simply  says  what  the  amount  of  that  assessment  shall  be,  and  as 
it  is  within  the  amount  prescribed  by  the  Rules  and  Regulations, 
it  is  not  in  conflict.  I  take  it  for  granted  that  the  assessment 
was  made  accordingly. 

Second — Was  the  ruling  of  the  Department  Commander 
correct,  when  he  held  that  any  amendment  to  change  the 
amount  of  the  assessment  must  be  made  in  writing  and  lay 
over  until  the  next  annual  meeting? 


170         OPINIONS    OF    JUDGE    ADVOCATES-GENERAL 


Yes.     Article  VII,  By- Laws  of  Department  of  Illinois  provides : 
"ALTERATIONS  AND  AMENDMENTS. 

"Any  alterations  and  amendments  to  these  By- Laws  must  be 
offered  in  writing,  and  shall  lay  over  until  the  next  annual  meet 
ing  of  the  Encampment,  and  be  adopted  by  a  two-thirds  vote  of 
all  the  members  present." 


OPINION  CXLV.     APRIL,  1883. 

Court  Martial — No  appeal  from  the  decision  of  Department  Commander  when  acting  as  the 
reviewing  officer  of  the  proceedings  of  a  Court  Martial. 

The  President  and  Judge  Advocate  of  a  Court  Martial 
appeal  to  the  Commander-in-Chief  from  the  decision  of 
the  Department  Commander  in  reviewing  the  findings  and 
sentence  of  the  Court,  and  praying  the  Commander-in-Chief 
to  "order  the  production,  before  him,  of  the  original  and 
entire  record  of  said  Court  Martial,  for  his  examination  on 
this  appeal,"  with  opportunity  for  said  President  and  Judge 
Advocate  of  the  Court  to  submit  a  brief  in  support  of  their 
appeal. 

The  "  Grounds  of  Appeal,"  as  stated,  are  six  in  num 
ber,  and  are  as  follows: 

First — That  the  charge,  findings  and  sentence  of  the 
aforesaid  Court  Martial  therein  assumed  to  be  reviewed  are 
not  therein  set  forth  as  is  required  by  military  usage  and 
custom,  which,  in  the  absence  of  specific  rules  to  the  con 
trary,  are  to  be  followed  and  observed  in  such  cases  by  the 
Grand  Army  of  the  Republic. 

Second — That  there  is  no  provision  in  said  order  and 
paragraph  dissolving  said  Court  Martial  or  relieving  the 
members  thereof  from  duty  on  the  same,  and  the  obliga 
tions  incumbent  on  such  duty. 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC.  171 


Third — That  the  said  order  and  paragraph  alleges  matter 
which  is  not  fact,  and  which  serves  to  place  the  under 
signed  and  said  Court  Martial  in  a  false  and  obnoxious 
position. 

Fourth — That  the  design  and  intent  of  said  order  and 
paragraph  is  not  in  good  faith  to  review  the  proceedings  of 
said  Court  Martial,  and  to  define  and  correct  the  errors,  if 
any,  committed  by  said  Court  Martial,  but  to  conceal  their 
findings  and  to  hold  the  officers  and  members  of  said  Court 
Martial  up  to  ridicule  and  contempt,  and,  further,  to  smother 
their  proceedings  and  sentence  without  just  reason  or  right. 

Fifth — That  the  alleged  decision  of  disapproval  and  the 
alleged  grounds  therefor  are  erroneous  both  in  law  and  in 
fact.  While  the  actual  findings  and  sentence  of  said  Court 
Martial  were  correct,  both  in  law  and  in  fact,  and  should 
have  been  approved. 

Sixth — The  undersigned  do  further  appeal  from  said 
order  and  paragraph  upon  the  ground  that  they  have  been 
and  are  agrieved  thereby,  both  in  their  official  capacity  and 
as  members  of  the  Grand  Army  of  the  Republic,  for  which 
grievance  they  are  entitled  to  redress  at  the  hands  of  the 
Commander-in-Chief  of  the  Grand  Army  of  the  Republic. 

In  my  opinion  the  first  question  that  is  presented  in  this  case 
is,  Can  an  appeal  be  taken  from  the  decision  of  the  Department 
Commander,  rendered  as  the  reviewing  officer  of  the  proceed 
ings  of  a  Court  Martial,  it  being  his  duty  to  review  the  pro 
ceedings?  The  duty  of  the  Department  Commander  and  the 
rights  of  the  accused  are  very  clearly  defined  in  Section  6, 
Article  VI,  Chapter  V,  Rules  and  Regulations  of  the  Grand 
Army.* 

*  SECTION  6,  ARTICLE  VI,  CHAPTER  V. 

SECTION  6.  No  sentence  of  a  Court  Martial  shall  be  carried  into  execu 
tion  until  after  the  whole  proceedings  shall  have  been  laid  before  the  officer 
ordering  the  same,  or  his  successor  in  office,  for  his  confirmation  or  disap 
proval  and  orders  in  the  case ;  and  no  sentence  of  dishonorable  discharge 
from  the  Grand  Army  of  the  Republic,  except  by  Court  Martial  convened 


172         OPINIONS    OF    JUDGE   ADVOCATES-GENERAL. 


It  was  the  evident  intent  of  the  framers  of  the  Rules  and  Reg 
ulations,  and  by  the  National  Encampment,  to  place  restriction 
upon  the  powers  of  a  Court  Martial,  and  to  give  the  accused  an 
additional  protection  from  unjust  or  unmerited  censure  or  dis 
grace.  And  when  this  power  was  conferred  on  the  reviewing 
officer  it  was  made  an  unlimited  power  to  examine  the  proceed 
ings,  and  was  "for  his  confirmation  or  disapproval  and  orders 
thereon." 

The  action,  then,  of  the  reviewing  officer,  must  necessarily 
be  final ;  no  appeal  is  provided  for  either  by  the  Rules  and  Reg 
ulations  or  by  the  United  States  Army  Regulations.  If  he,  the 
reviewing  officer,  approves,  it  gives  life  to  the  sentence  of  the 
Court,  which,  before  his  approval,  had  naught  but  form.  Not 
so  where  the  finding  or  sentence  is  disapproved.  Such  disap 
proval  entirely  destroys  and  sets  aside  the  action  of  the  Court 
Martial.  "A  disapproval  of  the  proceedings  of  a  Court  Martial 
by  the  legal  reviewing  authority  is  not  a  mere  expression  of  dis 
approbation,  but  a  final  determinate  act  putting  an  end  to  such 
proceedings  in  the  particular  case,  and  rendering  them  entirely 
nugatory  and  inoperative."  (See  Winthrop's  Digest  of  Opin 
ions  of  the  Judge  Advocate-General,  Section  2,  page  435.,) 

Says  the  same  authority,  page  436,  "It  is  quite  immaterial  to 
the  legal  effect  of  a  disapproval  whether  any  reasons  are  given 
therefor,  or  whether  the  reasons  given  are  wellfoimded  in  fact  or 
sufficient  in  law."1"1 

This  being  the  case,  then  the  power  to  approve  or  disapprove 
rests  fully  and  entirely  in  the  reviewing  officer,  and  his  action  is 
a  finality,  and  there  can  be  no  appeal  therefrom. 

This  settles  all  the  questions  raised  in  this  appeal,  and  the 
Commander-in-Chief  has  no  authority  and  can  make  no  order 
that  would  be  obligatory  on  the  Department  Commander. 
Whether  the  Department  Commander  acted  in  good  faith  in  his 
decision  is  a  matter  of  his  own  conscience  and  judgment,  and 
can  not  be  inquired  into  in  this  proceeding. 

NOTE -See  Decisions  LVI,  LXIV,  LXXII  and  CV. 

by  order  of  the  Commander-in-Chief,  shall  be  carried  into  execution  until 
after  the  whole  proceedings  shall  have  been  laid  before  the  officer  next  su 
perior  to  the  one  ordering  the  Court,  for  his  confirmation  or  disapproval  and 
orders  thereon. 


DECISIONS  OF  COMMANDERS-IN-CHIEF. 


Decisions  I  to  XIII ,  Inclusive,  Rendered  by  Commcinder-in- 
Chief  Louis  Wagner,  Approved  by  the  National  Encamp 
ment,  June,  1 88 1. 


DECISION  I. 

Dishonorably  discharged  members — Re-admission  of. 

Two  cases  of  Comrades  tried  and  convicted  by  Court 
Martial  and  sentenced  to  be  dishonorably  discharged,  were 
submitted,  their  Posts,  by  unanimous  vote,  asking  that  the 
sentences  be  revoked  and  the  Comrades  reinstated,  which 
recommendations  were  approved  by  the  Department  Com 
manders  and  forwarded  to  National  Headquarters. 

Not  feeling  satisfied  that  these  cases  came  within  the  pro 
visions  of  the  resolution  of  National  Encampment,  page  724, 
Journal,  1880,  I  declined  to  give  the  order  asked  for,  but  referred 
the  Posts  to  the  decision  of  the  Judge  Advocate-General,  No. 
XXIV,  dated  February  3,  1872. 


DECISION  II. 

Post  Commander — Can  not  order  second  ballot  until  he  has  announced  the  result  of  the  first. 

Comrade  Rowe,  Commander  Post  5,  Albany,  appealed 
from  the  decision  of  the  Department  Commander  of  New 
York,  under  the  following  facts: 


174  DECISIONS    OF    COMMANDERS-IN-CHIEF 


A  ballot  had  been  had  under  which  an  applicant  had 
been  duly  elected,  but  the  Post  Commander,  without  an 
nouncing  the  result,  ordered  a  second  ballot. 

Discovering  his  error,  the  Commander  sought  to  repair 
the  wrong,  but  on  the  submission  of  the  case  to  Depart 
ment  Headquarters,  it  was  decided  that  the  second  ballot 
should  be  completed. 

From  this  decision  Comrade  Rowe  appealed,  on  the 
ground  that  the  Post  Commander  could  not  reverse  the 
action  of  the  Comrades  at  the  ballot-box  by  which  the 
applicant  had  been  elected. 

The  appeal  of  Comrade  Rowe  was  sustained,  and  the  decision 
of  the  Department  Commander  reversed. 


DECISION  III. 

Applicants  for  membership  must  be  governed  by  qualifications  in  Article  IV,  Chapter  I. 
No  power  vested  in  any  officer  to  set  aside  provisions  of  Article  IV,  Chapter  I. 

On  a  question  submitted  through  Department  of  New  Jersey, 
asking  the  Commander-in-Chief  to  give  a  special  dispensation  to 
muster  an  applicant  who,  being  too  young  to  enlist,  had  been 
employed  in  various  duties  with  the  army,  I  decided  that  the 
applicant  must  be  governed  by  the  qualifications  required  in 
Article  IV,  Chapter  I,  Rules  and  Regulations,*  and  that  there 
was  no  power  vested  in  any  officer  to  set  aside  its  provisions. 


DECISION  IV. 

Past  Post  Commander  who  has  been  dropped  is  not  entitled  to  the  honors  of  that  position  unless 
again  elected  Post  Commander. 

„"  Comrade  Royce,  commanding  Department  of  the  Poto 
mac,  presented  the  following: 


*See  Opinion  IV. 


OF    THE   GRAND    ARMY    OF    THE    REPUBLIC.          175 


"  Is  a  Past  Post  Commander,  who  had,  after  service  as 
such,  been  dropped  from  the  rolls  and  then  re-joined  as  a 
recruit,  enitled  to  the  honors  of  that  position  unless  again 
elected  as  Post  Commander?" 

I  decided  that  the  Comrade  had  no  claim  to  any  honors 
earned,  or  resulting  from  such  honors,  previous  to  the  time  when 
he  was  dropped.  Having  again  become  a  member,  he  stands 
upon  the  footing  of  a  new  member. 


DECISION  V. 

0 

Eligibility — One  who  served  in  revenue  marine  service  not  eligible. 

On  the  question  presented  by  the  Department  of  Maryland  as 
to  eligibility  of  an  applicant  who  had  served  in  the  revenue  ma 
rine  service  as  an  enlisted  man,  and,  under  the  orders  of  the 
Navy  Department,  in  blockade  service  during  the  war,  I  decided 
that  he  was  not  eligible,  referring  to  Opinion  of  Judge  Advocate- 
General,  XXVII,  April  n,  1873. 


DECISION  VI. 

One  who  served  with  a  State  regiment,  and  mustered  out  on  a  "  State  Discharge,"  eligible  if 
otherwise  qualified. 

On  the  question  presented  by  Post  No.  i.  New  Orleans,  as  to 
eligibility  of  an  applicant  who  served  in  the  field  during  the 
Gettysburg  campaign  in  a  Pennsylvania  regiment,  but  not  mus 
tered  into  the  service  of  the  United  States,  who  was  "  in  service 
under  the  order  of  United  States  general  officers,"  and  at  the 
close  of  the  emergency  was  mustered  out  on  a  State  discharge, 
I  answered  that  he  was  eligible  if  otherwise  qualified. 


176  DECISIONS    OF    COMMANDERS-IN-CHIEF 


DECISION  VII. 

Per  Capita  Tax — Post  is  liable  for  the  quarter  in  which  it  was  organized. 

The  Commander  of  the  Department  of  the  Potomac 
decided  that  a  Post  should  pay  the  per  capita  tax  due  the 
Department  for  the  quarter  in  which  it  was  organized. 

To  this  the  Post  took  exceptions,  claiming  that  the 
charge  did  not  commence  until  the  first  of  the  ensuing 
quarter. 

The  decision  of  the  Department  Commander  was  sustained. 


DECISION  VIII. 

Dropped  member — One  twelve  months  in  arrears  is  dropped  by  the  Rules  and  Regulations. 

Quartermaster  or  Quartermaster-Sergeant  may  make  the  entry. 

When  a  Comrade  is  dropped,  the  Quartermaster  must  report  it  on  quarterly  return. 

From  the  same  Department  (Potomac)  an  appeal  was 
presented  on  the  right  of  the  Post  Quartermaster  to  drop 
from  the  rolls  any  Comrade  twelve  months  in  arrears,  who 
had  been  duly  notified,  without  the  direct  action  of  the  Post 
thereon. 

I  decided  that  when  a  Comrade  became  twelve  months  in 
arrears,  he  was  "dropped"  by  the  action  of  the  law  governing 
that  subject,  and  that  the  simple  clerical  duty  of  marking  the 
name  "dropped"  could  be  performed  by  the  Quartermaster  or 
Quartermaster-Sergeant. 

When  a  Comrade  is  marked  "dropped,"  it  becomes  the  duty 
of  the  Quartermaster  to  so  report  his  name  in  the  then  quarterly 
return. 


DECISION  IX. 

Countersign-  Department  Commander  may  communicate  as  a  matter  of  courtesy — When. 

On  an  application  from  the  Department  of  Connecticut  that 
the  Commander-in-Chief  detail  a  staff  officer  to  re-obligate   a 


OF    THE   GRAND    ARMY    OF    THE    REPUBLIC.          177 


Comrade  "dropped  from  the  rolls"  in  that  Department,  and 
then  residing  in  a  distant  city,  who  desired  to  be  restored,  I  an 
swered  that  there  was  now  no  provision  for  the  re-obligation  of 
dropped  members,  but  that  the  Department  Commander  where 
the  Comrade  resided,  could,  as  a  matter  of  courtesy,  communi 
cate  the  countersign,  on  receiving  such  a  request  officially,  to  a 
Comrade  thus  restored. 


DECISION  X. 

Post  Quartermaster  responsible  for  moneys  collected  by  Quartermaster-Sergeant. 

On  an  appeal  from  Post  35,  Department  of  Massachusetts,  I 
decided  that  the  Department  Commander  was  correct  in  ruling 
that  the  Post  Quartermaster  was  responsible  for  moneys  collected 
by  the  Quartermaster-Sergeant. 


DECISION  XI. 

Applicant  must  have  the  proper  qualifications  for  membership. 

The  Department  of  California  presented  the  question  of 
eligibility  of  one  who  served  on  the  "Coast  Survey,"  dur 
ing  the  war,  as  a  part  of  the  Atlantic  Squadron. 

I  decided  that  he  must  have  the  qualifications  required  by  our 
Rules,  and  that  his  discharge  papers  would  show  the  facts. 


DECISION  XII. 

Funerals — Authority  to  issue  an  order  to  attend  a  funeral  must  have  first  been  conferred  on  Host 

Commander  by  Post  By-Laws. 
Post  Commander  can  not,  on  his  own  option,  order  Comrades  to  attend  a  funeral. 

Can   a   Post  Commander  order  the   Post  to  attend   the 
funeral   of  other  than   a  Comrade   in  good   standing  at  his 
decease? 
12 


178  DECISIONS    OF    COMMANDERS-IN-CHIEF 


Decided :  That  the  power  to  issue  an  order  for  attendance 
at  a  funeral,  as  given  in  Paragraph  i  of  Burial  Services,  must 
have  been  first  conferred  on  the  Post  Commander  by  Post  By- 
Laws  or  resolution  of  the  Post. 

The  Post  Commander  can  not,  on  his  own  option,  direct 
Comrades  to  leave  their  business  to  attend  funerals  of  those  who 
did  not,  during  life,  have  interest  enough  in  the  Order  to  become 
members. 

There  may  be  cases  where  such  attendance  would  be  proper, 
but  the  Commander  could  learn  the  wishes  of  his  Comrades  by 
calling  a  special  meeting  of  the  Post. 


DECISION  XIII. 

The  opinion  of  the  Judge  Advocate-General  touching  the 
ordering  of  a  Court  Martial,  (see  his  report  herewith),  was  ap 
proved,  and  I  declined  to  convene  the  Court  asked  for,  consid 
ering  the  case  too  trivial  for  a  general  Court  Martial. 

NOTE -See  Opinion  CXXIV,  date  March  23,  1880,  and  Opinion  LXV,  June  30,  1875. 


OF    THE   GRAND    ARMY    OF    THE    REPUBLIC.          179 


Decisions  XIV  to  XIX,  Inclusive,  Rendered  by  Com- 
mander-in- Chief  George  S.  Merrill,  Reported  to  and 
Approved  by  the  Sixteenth  National  Encampment,  at 
Baltimore,  Md.,  Jnne,  1882. 


DECISION  XIV. 

Past  Provisional  Department  Commander  not  entitled  to  a  seat  in  the  Department  Encampment. 

A  Comrade  claimed  a  seat  in  the  Department  Encamp 
ment  of  Maryland,  by  reason  of  being  a  Past  Provisional 
Department  Commander.  An  adverse  decision  of  the  De 
partment  Commander  was  overruled  by  the  Encampment, 
and  the  Comrade  given  a  seat.  From  this  the  Department 
Commander  appealed. 

The  appeal  was  sustained ;  there  is  no  recognition  by  the 
Rules  and  Regulations,  of  "  Past  "  provisional  officers,  and  right 
fully,  they  being  created  by  appointment. 


DECISION  XV. 

Department  Commander — Office  of  can  not  be  declared  vacant  by  reason  ef  absence  from  the 
Department. 

Department  Commander  is  entitled  to  the  honors  of  the  office,  though  absent  from  the  Depart 
ment. 

Upon  a  question  submitted  by  the  Department  of  Vir 
ginia,  whether  the  Department  Encampment  or  Senior 
Vice-Commander,  has  the  right  to  declare  vacant  the  office 
of  Department  Commander  in  consequence  of  the  absence 


180  DECISIONS    OF   COMMANDERS-IN-CHIEF 


from  the  United  States,  during  the  greater  part  of  the  year, 
of  the  Comrade  elected  to  that  position,  and  whether  such 
Department  Commander  is  entitled  to  the  honors  of  the 
position. 

The  first  question  was  answered  negatively :  the  second  in  the 
affirmative. 


DECISION  XVI. 

Transfer  card — Holder  of,  who,  on  application  to  be  admitted  to  a  Post,  is  rejected,  is  not  re 
quired  to  obtain  the  consent  of  the  Post  that  rejected  him  in  order  to  join  another  Post. 

Case  of  appeal  from  the  Department  of  Massachusetts. 

C.  E.  G.,  a  Comrade  in  good  standing,  takes  a  transfer 
card  from  Post  63  ;  he  subsequently  presents  this,  and  asks 
admission  to  Post  23,  but  his  application  is  rejected.  His 
transfer  card,  without  any  indorsement  thereon,  is  returned 
to  him,  and  after  the  expiration  of  the  year  for  which  the 
transfer  is  granted,  he  applies  for  membership  in  Post  35. 
The  Judge  Advocate  renders  an  opinion  that  the  rejection 
of  G.  upon  application  upon  transfer  card,  necessitates  the 
consent  of  Post  23  to  his  application  for  membership  in 
any  other  Post,  and  that  the  provision  giving  an  honorable 
discharge  to  Comrades  who,  taking  a  transfer  card,  and  not 
joining  any  other  Post  within  one  year,  does  not  apply  to 
any  one  who  applies  to  and  is  rejected  by  a  Post  on  said 
transfer.  This  opinion  was  affirmed  by  the  Department 
Commander,  and  from  this  decision  Post  35  appealed. 

The  decision  of  the  Department  Commander  was  overruled 
and  the  appeal  sustained.  G. ,  not  being  admitted  to  any  Post 
within  a  year  from  the  date  of  his  transfer  card,  was  "  honorably 
discharged  from  the  Order"  within  the  meaning  of  Section  2, 
Article  IV,  Chapter  II,  Rules  and  Regulations.  Being  so  "con 
sidered."  he  is  entitled  to  re-admission  under  the  conditions  set 


OF   THE   GRAND    ARMY    OF   THE    REPUBLIC.          181 


forth  in  Section  3,  Article  IV,  Chapter  II,  and  is  subject  to  no 
others.  His  rejection  by  Post  23  involves  not  the  question  of 
admission  to  membership  in  the  Grand  Army,  but  the  materially 
different  question  of  admitting  a  member  of  the  Order  to  mem 
bership  in  a  particular  Post.  The  case,  therefore,  does  not  fall 
under  Section  5,  Article  II,  Chapter  II,  Rules  and  Regulations, 
nor  under  Opinion  LXXII,  of  1876.  There  seems  to  be  nothing 
in  the  language  of  Section  2,  Article  IV,  Chapter  II,  Rules  and 
Regulations,  or  in  the  context,  implying  any  discrimination  be 
tween  Comrades  who  apply  and  are  not  admitted  on  transfer 
cards,  and  those  who  do  not  so  apply  at  all.  The  absence  of 
any  provision  in  the  Rules  and  Regulations  for  reporting  rejec 
tions  on  transfer  cards,  is  a  fact  which,  though  not  conclusive,  is 
confirmative  of  the  view  here  taken. 


DECISION  XVII. 

Dropped  member — Not  eligible  to  membership  in  another  Post. 

Election  and  muster  of  dropped  members  into  a  Post  other  than  the  Post  that  dropped  them , 

illegal  and  void. 
Reinstatement  subsequent  to  muster  in  another  Post  does  not  render  valid  the  admission. 

J.  G.  H  applied  and  was  admitted  as  a  new  member  in 
Post  3,  of  New  Hampshire.  It  was  subsequently  discov 
ered  that  at  the  time  of  such  admission  he  was  a  "  drop 
ped  "  member  of  Post  42,  of  Massachusetts;  the  Com 
mander  of  Post  3  ordered  his  name  dropped  from  the  rolls 
on  the  ground  of  illegal  admission.  He  refused  to  go; 
later  he  applied  to  Post  42,  of  Massachusetts,  paid  his  ar 
rearage,  was  reinstated,  and  obtained  an  honorable  dis 
charge  ;  he  then  claimed  a  continuance  of  his  former  mem 
bership  in  Post  3,  of  New  Hampshire.  The  Department 
Commander  sustaining  his  position,  Post  3  appealed. 

The  appeal  was  sustained.  H.  being  a  dropped  member  of 
Post  42,  Department  of  Massachusetts,  was  not  eligible  for  ad 
mission  to  Post  3,  Department  of  New  Hampshire,  and  his 


182  DECISIONS    OF    COMMANDERS-IN-CHIEF 


admission  to  said  Post  3,  being  obtained  by  misrepresentation  or 
concealment  of  facts  on  his  part,  is  null  and  void.  His  subse 
quent  reinstatement  and  honorable  discharge  by  Post  42,  does 
not  render  valid  his  previous  admission  to  Post  3.  On  the  con 
trary,  it  shows  more  distinctly  the  illegality  of  that  admission, 
and  is  a  tacit  acknowledgment  by  H.  of  his  false  position. 


DECISION  XVIII. 

Dropped  member — Admission  of  into  another  Post  illegal — When. 

Post  can  not  admit  to  membership  any  person  declared  by  the  Rules  and  Regulations  to  be  in 
eligible. 

P.  H.  C.,  Department  of  Kansas,  was  dropped  from 
membership  in  Post  I ,  by  order  of  Post  Commander,  upon 
evidence  tbat  at  the  time  of  his  admission  he  was  ineligible, 
being  a  dropped  member  of  Post  7,  and  his  admission  to 
Post  i  null  and  void.  C.  appealed  on  the  ground  that  the 
Post  Commander  had  no  power  in  the  premises,  being 
himself  in  same  condition-  as  to  membership  with  said  C. 
The  appeal  was  overruled  by  the  Department  Commander, 
from  which  decision  C.  appealed. 

The  decision  of  the  Department  Commander  was  sustained, 
and  the  appeal  dismissed.  Former  decisions  are  to  the  effect 
that  no  action  of  a  Post  can  admit  to  membership  a  person  de 
clared  by  the  Rules  and  Regulations  "ineligible."  The  allega 
tion  against  the  Post  Commander  does  not  become  an  element 
in  deciding  this  case. 


DECISION  XIX. 

Court  Martial — Can  not  try  one  who  is  absent  and  serving  a  sentence  of  imprisonment. 
Absence  by  reason  of  confinement  under  civil  jurisdiction  can  not  be  considered  willful. 

The  case  of  C.  V.,  Department  of  New  York,  tried  by 
Post  Court   Martial  for  petty  larceny:    V.  had   previously 


OF   THE   GRAND    ARMY    OF   THE    REPUBLIC.          183 

been  tried  before  a  civil  court  for  the  offense,  and  sentenced 
to  a  term  of  imprisonment.  It  was  during  this  confinement 
that  the  Court  Martial  was  convened ;  the  latter  held  that 
the  accused  was  "  willfully  absent,"  and  the  trial  proceeded 
under  a  plea  of  not  guilty,  entered  by  the  Judge  Advocate. 
The  accused  was  found  guilty,  and  sentenced  to  dishonor 
able  discharge.  The  proceedings  and  sentence  were  over 
ruled  by  Department  Commander,  the  Judge  Advocate 
giving  an  opinion  that  while  V.  was  serving  out  a  sentence 
as  above,  no  Court  Martial  could  arraign  and  bring  him  to 
trial.  From  this  decision  the  Post  appealed. 

The  decision  of  the  Department  Commander  was  affirmed,  and 
appeal  dismissed.  Absence  by  reason  of  confinement  under 
civil  jurisdiction  can  not  be  considered  willful ;  and  neither  civil 
or  military  law  permits  the  trial  of  a  person  so  absent.  The  case 
seems  to  be  one  for  which  the  Rules  and  Regulations  should  pro 
vide,  but  they  do  not. 


COURTS  MARTIAL. 

RULES  AND  FORMS. 


RULES 

FOR 

GOVERNMENT  OF  COURTS  MARTIAL, 

REVISING    ARTICLE    VI,  CHAPTER    V,   PAGE    27. 

RULES  AND  REGULATIONS. 


The  following  Rules,  prepared  pursuant  to  action  of  the  Na 
tional  Encampment,  1879,  see  Paragraph  13,  page  640,  Journal 
1879,)  are  issued  for  the  instruction  and  government  of  the 
Order.  It  being  designed  : 

1.  To  give  Posts  more  control  over  charges  preferred  against 
their  members.     2nd.    To  avoid  the  necessity  for  a  formal  Court 
Martial  in  petty  cases.     3rd.    As  a  guide  for  conduct  of  Courts 
Martial. 

2.  From  and  after  promulgation  hereof,  no  Post  Court  Martial 
shall    be    convened,    except   when    the    same    shall    have    been 
ordered  by  a  majority  vote  of  the  Post  of  which  the  accused 
shall  be  a  member,  or  of  the  Post  under  whose  jurisdiction  or 
control  he  shall   be  at  the  time,  or  by  the   Department  Com 
mander. 

3.  If  a  Post  deem  charges,  duly  presented,  too  trivial  for  trial 
by  Court  Martial,  yet  requiring  investigation,  upon  a  motion  duly 
made,  and   adopted  by  a   majority  vote  of    the   Post,  the  Post 
Commander  shall   appoint  a  court  of    inquiry,  of  three  or  five 
Comrades  in  good  standing,  to  whom  the  matter  shall  be  referred, 
with  authority  to  make  such  examination  as  may,  by  them,  be 
deemed  necessary,  reporting  in  writing,  at  the  earliest  date,  their 
findings  and  recommendations  thereon  for  the  action  of  the  Post. 

4.  The  findings  and  sentences  of  Post  Courts  Martial  shall  be 
approved  by  a  majority  vote  of  said  Post,  subject  to  an  appeal 


188      RULES    FOR  GOVERNMENT  OF  COURTS  MARTIAL 


to  the  Department  Commander.  If  the  sentence  of  any  Post 
Court  Martial  shall  be  dishonorable  discharge  or  dismissal,  if  ap 
proved  by  a  majority  vote  of  the  Post,  the  proceedings,  findings 
and  sentence,  shall  be  forwarded  by  the  Post  Commander  to  the 
Department  Commander  (through  the  Assistant  Adjutant-General 
of  the  Department)  for  his  approval.  Such  a  sentence  can  not 
be  promulgated  without  his  approval. 

5.  Post  Courts  Martial  shall  be  composed  of  not  less  than  five 
nor  more  than  nine  members  and  a  Judge  Advocate,  all  of  whom 
shall  be  appointed  by  the  Post  Commander  in  a  special  order 
convening  the  Court.     He  shall  name  the  Comrade  who  shall 
act  as  the  President  of  the  Court,  and  the  other  members  of  the 
Court  shall  rank  before  the  Court  according  to  their  numbers  or 
names  in  the  said  special  order  appointing  the  Court. 

6.  The  following  form  of  order  shall  be   used  by  the  Post 
Commander : 

HEADQUARTERS   POST,  No 

DEPARTMENT  OF   ,  G.  A.  R ,  18 .  . 

SPECIAL  ORDERS  No 

A  Post  Court  Martial  is  hereby  appointed  to  meet  at 


on  the day  of A.  D.  18 

or  as  soon   thereafter  as  practicable,  for  the  trial  of  Comrade 

DETAIL    FOR    THE    COURT. 

r.   Comrade President.  2.   Comrade 

3-  4-  

5-          "          ••• 6.          »          

7.  8.  

9-          tl          

Comrade to  be  Judge  Advocate. 

By  order  of  the  Post, 


Post  Commander. 
Adjutant. 


OF  THE    GRAND    ARMY    OF   THE    REPUBLIC.          189 


7.     The  following  shall  be  the  form  of  the  charge  and  speci 
fication  : 

Charge  and  specification  preferred  against  Comrade. 

of Post,  No 

Department  of    ,  Grand  Army  of  the  Re 
public. 

CHARGE {Here  insert  the  charge.) 


Specification — In  this,  that  the  said  Comrade. 
{Here  specify  what  he  did.~}.. 


{Here  insert  other  specifications,  or  other  charges  and  specifica 
tions,  to  cover  the  case. ) 


All  this  at 

on  or  about  the day  of 1 8 .... 

By  order  of .  .  Post  No .  . 


Post  Commander. 
Attest , 

Adjutant. 

8.  The  Judge  Advocate  shall  give  the  accused  at  least  ten 
days'  notice  of  the  time  and  place  at  which  the  Court  will  sit  for 
his  trial,  inclosing  a  copy  of  the  charge  and  specification,  and  a 
list  of  the  members  of  the  Court.  The  notice  shall  be  in  the  fol 
lowing  form : 


18.. 

COMRADE 

You  are  hereby  notified  that  a  Post  Court  Martial,  by  order 

of Post  No ,  Department  of 

Grand  Army  of  the  Republic  {or  of 

the  Department  Commander},  will  convene  for  your  trial  upon 
the  charge  and  specification  preferred  against  you  at 

on.  .  18.  .,  at  . .  o'clock  .  .M. 


190     RULES   FOR  GOVERNMENT  OF  COURTS  MARTIAL 


I  send  you  herewith  a  copy  of  the  charge  and  specification, 
and  a  list  of  the  members  of  the  Court. 
You  will  please  attend. 

Yours  in  F.,  C.,  and  L. , 


Judge  Advocate  of  the  Court. 

9.  The  Court  shall  meet  at  the  time  and  place  appointed, 
and  proceed  as  follows  : 

The  Judge  Advocate  shall  call  the  roll  of  members  of  the  Court, 
and  if  five  are  present  the  Court  will  be  announced  as  open,  and 
the  accused  admitted  with  his  counsel.  Should  the  accused  not 
appear,  the  trial  shall  proceed  in  the  same  manner  as  if  he  were 
present.  Should  the  Court  be  cleared  for  deliberation  at  any 
time,  no  person  can  be  present  except  the  Court  and  the  Judge 
Advocate. 

10.  The  Judge  Advocate  shall  then  rise  and  read  aloud  to  the 
accused,  if  present,  the  order  appointing  the  Court,  and  then  ask 
the  accused  if  he  has  any  objection  to  any  member  of  the  Court 
named  in  the  order,  and  record  all  objections  in  the  proceedings. 
If  no  objections  are  presented,  the  trial  will  go  on  ;  but  if  objec 
tion  is  stated,   the  same  shall   be  considered,   after  which  the 
Court  will  be  cleared,  the  challenged  member  of  the  Court  retir 
ing.     After  deliberation  the  doors  will  be  re-opened,  and  the 
Judge  Advocate  shall  announce  the  decision  of  the  Court.     If 
the  objection  made  by  the  accused  is  sustained  by  the  Court,  the 
challenged  member  can  not  act  in  the  case. 

11.  The  President  and  other  members  of  the  Court  present 
shall  then  rise,  and  the  Judge  Advocate  shall  administer  to  them, 
together,  the  following 

OBLIGATION  OF  THE  COURT. 

"You,' and  each  of  you,  do  solemnly  and  sincerely  declare 
and  affirm,  on  honor  as  Comrades  of  the  Grand  Army  of  the  Re 
public,  that  you  will  well  and  truly  try  and  determine,  according 
to  evidence,  the  matter  now  before  you,  that  is  to  say,  the 

charges  and  specifications  preferred  against  Comrade 

,  of  Post  No.   .  . ,  Grand  Army  of  the  Republic, 


OF   THE    GRAND    ARMY    OF   THE    REPUBLIC.  191 


and  that  you  will  duly  administer  justice  according  to  the  Rules 
and  Regulations  of  the  Grand  Army  of  the  Republic,  without 
partiality,  favor  or  affection ;  and  if  any  doubt  shall  arise,  not 
explained  by  said  Rules  and  Regulations,  according  to  your  con 
science,  the  best  of  your  understanding,  and  the  custom  in  like 
cases;  and  you,  and  each  of  you,  do  further  declare  and  affirm 
that  you  will  not  divulge  the  sentence  of  the  Court  until  it  shall 
be  published  by  the  proper  authority ;  neither  will  you  disclose 
or  discover  the  vote  or  opinion  of  any  particular  member  of  the 
Court  Martial,  unless  required  to  give  evidence  thereof  in  due 
course  of  law.  So  you,  and  each  of  you,  do  affirm." 

12.  The  Judge  Advocate  shall  then  rise  and  take  the  following 
obligation,  which  shall  be  administered  to  him  by  the  President 
of  the  Court : 

"  You,  Comrade    ,  Judge  Advocate  of 

the  Court,  do  solemnly  and  sincerely  declare  and  affirm,  on  your 
honor  as  a  Comrade  of  the  Grand  Army  of  the  Republic,  that 
you  will  not  disclose  or  discover  the  vote  or  opinion  of  any  par 
ticular  member  of  the  Court  Martial,  unless  required  to  give  evi 
dence  thereof  as  a  witness  by  a  court  of  justice,  in  due  course 
of  law,  nor  divulge  the  sentence  of  the  Court  to  any  but  the 
proper  authority  until  it  shall  be  duly  disclosed  by  the  same. 
So  you  do  affirm." 

13.  The  Judge  Advocate  shall  then  arraign  the  accused,  read 
ing  aloud  to  him  the  charge  and  specification,  and  at  the  close 
shall  say : 

"  How  say  you,  Comrade ,  Guilty  or  Not 

Guilty?" 

Whereupon  the  plea  of  the  accused  shall  be  taken  and  re 
corded  to  each  specification,  as  well  as  to  the  charge. 

14.  The  Judge  Advocate  shall  then  call  the  first  witness  for 
the  prosecution,  and  administer  to  him,  and  every  witness,  the 
following 

OBLIGATION  OF  WITNESSES. 

"  You,    Comrade do   solemnly  and 

sincerely  declare  and  affirm,  on  your  honor  as  a  Comrade  of  the 
Grand  Army  of  the  Republic,  that  the  evidence  you  shall  give  in 


192     RULES   FOR  GOVERNMENT  OF  COURTS  MARTIAL 


the  cause  now  in  hearing,  in  the  trial  of  Comrade 

,  shall  be  the  truth,  the  whole  truth,  and 

nothing  but  the  truth,  and  this  you  do  affirm." 

The  Judge  Advocate  shall  then  ask  the  witness : 

"Do  you  consider  this  affirmation  and  obligation  binding  on 
your  conscience  ?" 

15.  The  evidence  of  the  witness  shall  then  be  taken  and  writ 
ten  by  the  Judge  Advocate,  in  narrative  form,  as  far  as  practica 
ble.    All  questions  shall  be  reduced  to  writing  and  handed  to  the 
Judge  Advocate,  who  shall  read  them  to  the  witness,  if  they  are 
proper  questions  and  relevant  to  the  case.     Should  any  dispute 
arise  as  to  the  competency  of  evidence,  or  of  any  question  pro 
pounded,  the  Court  shall  be  cleared  for  deliberation,  and,  on 
re-opening,  the  decision   shall   be  announced   by  the  Judge  Ad 
vocate. 

When  all  the  witnesses  for  the  prosecution  have  been  exam 
ined,  the  accused  shall  enter  upon  his  defense.  If  no  counsel 
shall  appear  on  behalf  of  the  accused,  the  Judge  Advocate  shall 
assist  the  accused,  so  far  as  he  can,  in  presenting  his  defense 
and  in  shaping  questions  to  his  witnesses,  but  it  shall  also  be  the 
duty  of  the  Judge  Advocate  to  cross-examine  the  witnesses  for 
the  defense.  After  the  testimony  on  both  sides  has  been  closed, 
the  Judge  Advocate  may  address  the  Court,  if  he  thinks  proper, 
in  support  of  the  prosecution,  and  the  accused,  or  his  counsel, 
may  address  the  Court  for  the  defense,  the  Judge  Advocate  hav 
ing  the  privilege  of  making  the  closing  argument  in  the  case. 
After  which  the  Court  shall  be  cleared  for  deliberation. 

1 6.  The  findings  of  the  Court  shall  be  by  written  vote  upon 
each  specification  and  charge.     The  votes  shall  be  collected  by  the 
Judge  Advocate,  and  he  shall  announce  the  result  to  the  Court, 
when  counted,  which  shall  be  done  in  their  presence.     The  con 
viction  or  acquittal  of  the  accused  shall  be  determined  by  a  ma 
jority  of  the  votes  of  the  members  of  the  Court.     The  order  in 

which  the  Court  shall  vote  shall  be  as  follows :  The  Court  being 
ready  to  vote,  the  President  so  informs  the  Judge  Advocate,  who 
then  reads,  in  consecutive  order,  the  specifications  to  the  first 
charge,  and  then  the  first  charge,  and  so  on  with  the  other 


OF  THE  GRAND  ARMY  OF  THE  REPUBLIC. 


charges  and  specifications ;  and  the  votes  shall  be  taken,  in  suc 
cession,  upon  each  specification  and  charge  as  it  is  read  by  the 
fudge  Advocate. 

An  equal  division  of  the  votes  on  any  specification  or  charge 
shall  result  in  a  finding  of  not  guilty  as  to  that  specification  or 
charge. 

Votes  having  been  taken,  and  the  findings  recorded  upon  each 
specification  and  charge,  the  finding  thus  declared  is  the  decis 
ion  of  the  Court,  and  the  sentence  should  then  be  pronounced 
in  strict  accordance  with  the  charges  and  specifications  of  which 
the  accused  has  been  found  guilty,  and  should  be  without  regard 
to  individual  sympathies  or  opinions.  This  is  required  by  the 
obligation  assumed  by  each  member  of  the  Court. 

The  voting  on  the  grade  of  sentence  to  be  imposed  shall  be 
conducted  as  follows :  Taking  that  of  the  highest  grade  first,  if 
a  majority  of  the  Court  present  shall  vote  for  the  highest  grade 
of  punishment,  it  shall  be  recorded  as  the  sentence  of  the  Court. 
All  members  of  the  Court  present  must  vote  for  some  proper 
sentence  of  the  Court,  and  if  that  which  any  member  votes  for 
is  not  adopted  by  a  majority  vote  of  those  present,  some  punish 
ment  must  be  voted  till  a  majority  agree  as  to  one  punishment. 

17.  Every  Court  Martial  shall  keep  a  complete  and  accurate 
record  of  its  proceedings,  to  be  authenticated  by  the  signatures 
of  the  President  and  Judge  Advocate  of  the  Court,  who  shall 
also  certify,  in  like  manner,  the  sentence  pronounced  by  the 
Court. 

The  following  form  will  serve  to  enable  Courts  Martial  to  pre 
sent  a  proper 

RECORD  OF  THE  PROCEEDINGS. 


Proceedings  of  a  Post  Court  Martial,  convened  at 

in  the  county  of ,  Department  of  .  . 

by  virtue  of  the  following  special  order : 

{Here  insert  the  order  appointing  the  Court.  ) 


194     RULES   FOR  GOVERNMENT  OF  COURTS  MARTIAL 


HEADQUARTERS 

,  18.... 

o'clock,  ....  M. 

The  Court  met  pursuant  to  the  above  order.     Present : 
Comrade ,  President. 

"•  Comrade.. 


a  a 

a  a 


and   Comrade    ,  Judge  Advocate. 

The  accused,  Comrade ,  of  Post  No 

Department  of ,  Grand  Army  of  the  Repub 
lic,  was  also  present  {and  his  counsel, if 

present.} 

The  Judge   Advocate   having  read   the  order  convening  the 

Court,  asked  the  accused,  Comrade ,  if  he 

had  any  objection  to  any  member  named  therein,  to  which  he 
replied  that  he  had  no  objection  to  any  member  named  in  the 
order  convening  the  Court. 

[7>z  the  event  of  objection,  state  the  name  of  the  member  objected 

to  as  follows ;     "The  accused  objected  to  Comrade , 

and  stated  his  cause  of  challenge  as  follows :  {Here  insert  the 
statement  of  the  accused.}  Comrade (the  chal 
lenged  member  of  the  Court)  stated  that ,"  etc.] 

The  Court  was  cleared,  the  challenged  member  retiring,  and 
after  due  deliberation  the  doors  were  opened,  the  accused  and 
challenged  member  present,  and  the  decision  of  the  Court  was 
announced  by  the  Judge  Advocate:  "That  the  challenge  is 
sustained  as  sufficient,"  or  "That  the  challenge  is  not  sustained, 
being  insufficient." 

The  members  of  the  Court  then  rose,  and  they,  and  each  of 
them,  in  the  presence  of  the  accused,  were  duly  affirmed  and 
obligated  by  the  Judge  Advocate,  and  the  Judge  Advocate  was 
thereupon  duly  affirmed  and  obligated  by  the  President  of  the 
Court,  in  the  presence  of  the  accused. 

The  accused,  Comrade of  Post  No , 

Department  of . ,  Grand  Army  of  the  Re 
public,  was  arraigned  on  the  following  charges  and  specifica- 


OF   THE   GRAND    ARMY   OF  THE   REPUBLIC.          195 

tions,  which  were  read  aloud  by  the  Judge  Advocate.     (Here 
insert  them. ) 

To  which  the  accused  pleaded  as  follows : 


To  the  first  specification  of  ist  charge, 
"       second        "  " 

' '      first  charge , 

"       first  specification  of  2d  charge, 

"       second        " 

' '       second  charge , 


Comrade . . . . ,  of  Post  No Grand 

Army  of  the  Republic,  a  witness  on  the  part  of  the  prosecution, 
was  duly  affirmed  and  obligated. 

Question  by  Judge  Advocate (Here  insert  question.} 

Answer (Here  insert  answer. ) 

(When  the  Judge  Advocate  has  finished  his  examination,  the 
accused,  or  his  counsel,  may  put  questions,  through  the  Judge 
Advocate,  which  shall  be  recorded  thus: 

Question  for  defense 

Answer .* 

(When  the  cross-examination  is  completed,  the  Court  may  put 
questions,  through  the  Judge  Advocate,  which  shall  be  recorded 
thus: 


Question  by  the  Court 
Answer 


(And  so  on  with  each  witness  for  the  prosecution. ) 
The  prosecution  here  closed. 

Comrade   ,  of   Post  No ,  Department 

of   ,  Grand  Army  of  the  Republic,  a  witness 

on  the  part  of  the  defense,  was  duly  affirmed  and  obligated.. 

Question  for  defense 

Answer  .  .  


Question  by  Judge  Advocate 
Answer  . ,  , 


RULES  FOR  GOVERNMENT  OF  COURTS  MARTIAL 


Question  by  the  Court 

Answer 

(Should  the  Court  adjourn  pending  the  proceedings. ) 

The  Court  then  adjourned  to  meet  again  at o'clock 

....  M.,  on ,  1 8 

(  On  re-assembling  the  record  proceeds. ) 

,    .  .   o'clock  ....    M. ,    .... 

The  Court  met,  pursuant  to  adjournment.  Present,  Com 
rade  ,  President,  Comrades 

(here  insert  names  of  all  members  of  Court  present),  and  Com 
rade  ,  Judge  Advocate. 

The  accused, ,  was  also  present,  (with  his 

counsel, ) 

The  proceedings  of  the  last  session  of  the  Court  of 

,  1 8 . . ,  were  presented  to  the  Court  by  the  Judge 

Advocate. 

(Here  record  additional  proceedings. ) 

The  accused  (or  "the  counsel  for  the  accused")  addressed 
the  Court  (or  "read  a  statement")  for  the  defense.  (If  in 
writing,  it  should  be  appended  to  the  proceedings  and  marked.) 

(Here  add  the  statement  of  the  Judge  Advocate,  or  ' '  The  Judge 
Advocate  submitted  the  case  to  the  Cotirt. ' ' ) 

The  Court  was  then  cleared  for  deliberation,  and  having  ma 
turely  considered  the  evidence  adduced,  find  the  accused,  Com 
rade  ,  of Post,  No , 

Department  of ,  Grand  Army  of  the  Republic, 

as  follows : 

Of  the  first  specification  of  first  charge,  Guilty  (or  Not 
Guilty,  as  the  case  may  be.) 

Of  the  second  specification  of  first  charge,  Guilty  (or  Not 
Guilty,  as  before.) 

Of  the  first  charge,  ,  Guilty  (or  Not 

Guilty,  as  the  case  may  be.) 

(And  so  on  with  each  specification  and  charge. ) 


OF   THE   GRAND    ARMY   OF   THE   REPUBLIC.          19' 


SENTENCE. 

And  the  Court  do  therefore  sentence  him,  Comrade 

of   Post,  No , 

Department  of ,  Grand  Army  of  the 

Republic,  that  he  be (Here  insert  the  sentence 

of  the  Court. 

(If  a  suspension,  record  it  thus:) 

"suspended  from   membership   in 

the  Grand  Army  of  the  Republic,  and  from  all  rights  and  privi 
leges  of  the  Order,  for  the  period  of "     (Insert 

the  /ime.} 

(If  a  dishonorable  discharge,  record  it  thus:) 

:t  dishonorably  disharged  and  dismissed 

from  the  Grand  Army  of  the  Republic." 
(Signed) 


President  of  the  Court. 


Judge  Advocate. 


(  When  the  proceedings  are  forwarded  to  the  Department  Com 
mander,  indorse  as  follows :} 

Proceedings,  Findings,  and  Sentence  of  the  Court  Martial  in 
the  trial  of  Comrade ,  of  Post  No ,  De 
partment  of  ,  Grand  Army  of  the 

Republic. 

Approved.       Respectfully  forwarded  to , 

Commander  Department  of   ,  Grand  Army 

of  the  Republic. 

(Signed) 

Post  Commander, 

Post,  No.  ..,  G.  A.  R. 

To , 

Assistant  Adjutant  General. 


I  N  DEX 


SYLLABUS  OF  OPINIONS, 


ADJOURNMENT— 

Motion  to  adjourn  out  of  order 85  122 

Same 103  135 

ADJUTANT  GENERAL,  ASSISTANT— 

To  grant  transfer  card,  when 19  33 

Duty  of,  to  notify  Departments  or  Posts  of  failure  to  re 
ceive  reports 49  64 

ADMISSION  FEE— 

Not  required  with  application 2  9 

Property  of  the  Post 2  9 

When  forfeited,  may  be  refunded 2  9 

Post  may  fix  amount  of 

Must  be  uniform ' 86  123 

APPEALS— 

From   Department  Commander  or   Department  Encamp 
ment  should  go  to  Commander-in-Chief  first,  then  after  5  14 

his   ruling  may  go  to  National  Encampment 12  25 

From  reviewing  officer  of  sentence  of  Courts  Martial  will 

not  lie 56  75 

Same 64  94 

Same 73  108 

Same 105  136 

Same 145  17° 


200  INDEX    AND    SYLLABUS 


APPLICANTS  FOR  MEMBERSHIP—  OPINION.     PAGE. 

No  information,  as  to  cause  or  means  of  rejection,  shall  be 

divulged 30  42 

Section  i,  Article  XIII,  Chapter  V,  Rules  and  Regulations     30  42 

Penalty  for  violation.     Section  2,  Article  XIII,  Chapter  V     30  42 

Properly  qualified  applicants  may  be  admitted  without  re 
gard  to  their  residence 36  50 

Report  of  investigating  committee  on  applicants  must  be 

in  writing  and  on  the  application 37  51 

Where  applicant  has  been  reported  on  verbally  by  commit 
tee,  and  the  applicant  has  been  voted  for  and  rejected, 
the  ballot  may  be  renewed 37  51 

Admission  to  membership.     Article  II,  Chapter  II,  Rules 

and  Regulations 1 1  23 

Where  applicant  has  not  been  seen  by  the  committee,  and 
report  is  made,  and  ballot  had,  the  ballot  may  be  set 
aside  by  the  Department  Commander 57  78 

An  applicant  not  mustered  can  have  no  claim  or  appeal          57  78 

An  applicant  rejected  by  one  Post,  and  who  applies  to  an 
other  Post  and  is  mustered  before  the  expiration  of  the 
time  fixed  by  law,  is  illegally  elected  and  mustered,  and 
should  be  dropped  from  the  rolls 72  104 

Recruit  under  the  Grade  system  must  proceed  as  an  orig 
inal  applicant 74  109 

When  applicant  is  reported  on  by  investigating  committee, 

the  ballot  must  be  had,  whatever  the  report  may  be ....      89  126 

Same 138  163 

Applicant  should  be  admitted  under  his  true  name 122  150 

Applicant  holding  transfer  card,  must  make  a  regular  ap 
plication  for  membership 137  162 

Applicant  can  not  be  balloted  for  the  second  time  until  the 
Commander  has  announced  the  result  of  the  first  ballot. 
Decision  II,  Commander-in-Chief 173 

Applicant  must  be  governed  by  the   requirements  of  the 

Regulations.     Decision  III,  Commander-in-Chief 174 

Must  have  the  proper  qualifications.  Decision  XI,  Com 
mander-in-Chief 177 

APPLICATION  FOR  MEMBERSHIP— 

Can  not  be  withdrawn  after  the  investigating  committee 

reports  thereon 138  163 

ASSESSMENT  OR  TAX— 

None  can  be  assessed  on  members  of  "  first  and  second 

grades" 5  14 

Compulsory;  limited  to  the  levy  of  an  annual  tax  or  dues     63  91 


OF   OPINIONS.  201 


ASSESSMENT  OR  TAX— CONTINUED.                                  OPINION.  PAGE 

For  transfer  card  illegal  and  void 3  1 1 

Same 63  91 

By-Law  fixing  an  assessment  for  burial  expenses,  void.. .  .      91  127 

ASSISTANT  MUSTERING  OFFICER— 

Not  recognized  by  Rules  and  Regulations 78  1 16 


BADGE— 

Insignia  of  rank 16  29 

Is  personal  property,  but  should  be  worn  only  by  actual 

active  members  of  the  Grand  Army  of  the  Republic 139  165 

BALLOT— 

A  personal  matter.     Should  not  be  used  in  malice 15  28 

May  be  renewed  when  verbal  report  has  been  made  by 
the  investigating  committee,  and  applicant  has  been  re 
jected 37  51 

Should    be    set  aside  by   Department   Commander  when 

committee  reports  without  having  seen  the  applicant- . .      57  78 

Can  not  ballot  for  several  candidates  collectively 100  133 

Must  be  taken  after  investigating  committee  reports 138  163 

For  reinstatement,  should  be  by  ball  ballot 142  168 

Post  Commander  can  not  order  second  ballot  until  he  an 
nounces  result  of  the  first.  Decision  II,  Commander- 
in-Chief 1 73 

BY-LAWS— 

Post  may  provide   By-Law   fixing  penalty  against  officer 

for  neglect  of  duty  ;   recovered  by  Courts  Martial 23  36 

Requiring  all  members  present  to  vote  on  all  questions, 

unless  excused,  is  valid 58  79 

Fixing  fee  for  transfer  card,  void 63  91 

Shall  be  signed  by  all  the  members  of  the  Post  within  a 

reasonable  time °7  98 

Change,  or  amendment,  made  only  in  the  mode  provided 

by  the  By-Laws  themselves 144  l69 

Authority  to  issue  an  order  to  attend  a  funeral  must  be 

conferred  by  By-Law  of  the  Post.     Decision  XII,  Com- 

mander-in-Chief 1 77 


202  INDEX    AND    SYLLABUS 


C 
CANDIDATES—  OPINION.      PAGE. 

Opportunity  for  stating  objections  to,  must  be  given 15  28 

Must  be  balloted  for  separately 100  133 

Must  be  balloted  for,  as  soon  as  the  investigating  com 
mittee  have  made  their  report 89  126 

Same 138  1 63 

CHARGES— 

Must  be  tried  by  Court  Martial i  7 

Same 23    '         36 

See  "  COURT  MARTIAL,"  and  Decisions  cited, 
Continuous  neglect  of  duty  on  the  part  of  an  officer  suf 
ficient  cause  for  charges 23  37 

Accused  entitled  to  copy  of 52  67 

CHARTER— 

National  Encampment,  or  Commander-in-Chief,  with  con 
sent  of  National  Council  of  Administration,  may  revoke 
Department  Charter,  when 8  17 

Department  Commander,  with  consent  of  Council  of  Ad 
ministration,  may  revoke  Charter  of  a  Post 8  17 

New  Charter  should  have  been  granted  when  districts 

were  abolished 40  55 

Should  contain  only  names  borne  on  the  old  Charter 40  55 

Charter  may  be  forfeited  by  neglect  to  hold  monthly  meet 
ings  44  58 

CHARTER-MEMBERS— 

The  holder  of  a  transfer  card  may  be  a  Charter-member 

of  a  new  Post 78  115 

Members  of  a  Post  can  not  become  Charter-members  of 
a  new  Post  without  having  transfer  cards  or  honorable 

discharges 79  l  1 6 

Same 92  127 

Department  Commander  may  approve  the  application  of  a 
member  of  a  disbanded  Post  and  re-admit  him  as  a  mem 
ber  of  another  Post,  or  as  a  Charter-member  of  a  new 

Post 42  56 

Same 108  138 

Same 115  143 

Same •    116  145 

Charter  can  not  be  issued  to  form  a  new  Post  to  members 

of  an  existing  Post  who  are  in  arrears  for  dues 1 16  146 

Same 35  4# 


OF   OPINIONS.  203 


CHARTER-MEMBERS—CONTINUED.                                       OPINION.     PAGE. 
The  Commander  of  a  Post  can  not  call  in  question  the 
standing  of  a  Charter-member,  nor  ignore  his  claim  as 
a  Charter-member  of  the  Post 1 16  145 

COMMANDER-IN-CHIEF— 

May  authorize  translation  of  the  Ritual 7              16 

May  authorize  the  use  of  Ritual  in  a  foreign  language ....  7              16 

Has  no  authority  to  withdraw  Department  Charter 8             17 

May  place  Department  Commander  under  arrest 8              17 

Powers  of,  as  to  Department  officers 8             17 

May  appoint  Acting  Department  Commander 8              17 

Should  order  Department  Commander  to  perform  neglected 

duty 9             21 

May  take  charge  of  Department,  and  call  meeting  of  De 
partment  Encampment,  when 9  22 

Has  no  power  to  change  a  Permanent   Department  to  a 

Provisional  Department 10              22 

Has  no  power  to  fill  vacancy  in  National  Council  of  Ad 
ministration  25  37 

Organize  a  Permanent  Department  from  Provisional  De 
partment  27  39 

May  ratify  the  acts  of  Provisional  Commander 27             39 

Has  no  authority  to  prescribe  a  plan  for  the  observance  of 

Memorial  Day 48             6 1 

May,  in  the  exercise  of  sound  discretion,  refuse  to  order 

a  Court  to  try  certain  charges  and  specifications 65              94 

Same 124           152 

See,  also,  Decision  XIII,  Commander-in-Chief 1 78 

May  suspend  an  officer  from  the  discharge  of  his  official 

duties,  after  charges  are  preferred 66             97 

Shall  convene  Court  for  the  trial  of  a  member  of  the  Na 
tional  Encampment no  1 40 

Also,  if  charges  be  preferred  by  Department  Commander  no            140 

May  detail  Staff  Officer  to  re-obligate  a  Comrade 118            148 

COMMANDER,  DEPARTMENT— 

See  DEPARTMENT  COMMANDER. 

COMMANDER,  PROVISIONAL— 

Can  not  appoint  Department  Inspector 14 

Staff  of '4 

Must  reside  within  the  Department 23 

When  he  assumes  to  act  and  to  organize  the  Permanent 
Department  without  the  order  of  the  Commander-in- 
Chief,  his  acts  are  illegal  and  void 27  39 


204  •    INDEX    AND    SYLLABUS 


COMMANDER,  PROVISIONAL— CONTINUED.  OPINION.     PAGE. 

Commander-in-Chief  may  ratify  the  act  of  the  Provisional 

Commander 27  39 

Not  entitled  to  a  seat  in  the  National  Encampment  by  vir 
tue  of  having  been  a  Provisional  Department  Com 
mander  1 29  156 

Same.     Decision  XIV,  Commander-in-Chief 179 

COMMANDER,  POST— 

See  POST  COMMANDER. 

COMMITTEE,  INVESTIGATING— 

Report  of,  must  be  presented  in  writing,  and  on  the  appli 
cation  37  51 

Verbal  report  of  can  not  be  acted  upon,  and  if  so  acted 

on,  action  is  illegal 37  51 

Where  verbal  report  has  been  acted  upon,  and  the  appli 
cant  has  been  rejected,  the  ballot  may  be  renewed  be 
fore  the  time  specified  by  Rules  and  Regulations.  ...  37  51 

CORRESPONDENCE— 

Military  usage,  when  required 119  148 

COUNCIL  OF  ADMINISTRATION— 

Can  not  withdraw  the  Charter  of  a  Department.  (Changed 

by  an  amendment.  See  Note  to  Opinion.) 8  17 

Has  no  power  to  legalize  an  illegal  act  of  a  Post  Com 
mander ii  23 

Members  of  the  National  Council  of  Administration  may 
sit  in  National  Encampment,  whether  their  Department 
is  in  arrears  or  not 12  25 

Are  members  of  National  Encampment 12  25 

Vacancies  in,  occuring  during  the  year,  filled  by  the  Coun 
cil  of  Administration 25  38 

Member  holding  transfer  card  may  act 135  160 

COUNTERSIGN— 

Post  Commander  may,  when  the  occasion  demands  it, 
communicate  the  countersign  either  at  a  meeting  of  the 

Post,  or  outside  of  the  Post 134  160 

Same 141  167 

Department  Commander  may  communicate   countersign. 

Decision  IX,  Commander-in-Chief 176 


OF   OPINIONS.  205 


COURT    MARTIAL—  OPINION.      PAGE. 

Rules  for jgc 

United  States  Army  Regulations  to  govern I 

Same 36  50 

Same 52  67 

Post  can  not  order  publication  of  sentence 30  42 

The  Judge  Advocate  should  be  detailed  with  reference  to 

his  qualifications 36  co 

The  accused  is  entitled  to  a  copy  of  the  charges  if  he  make 

request  therefor  at  the  proper  time 52  67 

Request  for  trial  by  a  Department  Court  must  be  made 

before  the  time  fixed  for  the  meeting  of  the   Court 52  67 

Where  the  evidence  is  not  furnished  the  record  is  incom 
plete,  and  a  new  trial  may  be  ordered 52  67 

When    a  new  trial  is   ordered,    Department   Commander 

may  order  the  case  tried  by  Department  Court 52  67 

There  can  be  no  appeal  from  the  decision  of  the  review 
ing  officer,  when 56  75 

Same 64  94 

Same    73  108 

Same 105  136 

Same 145  170 

Reviewing  officer  may  mitigate  the  sentence,  but  not  after 

he  has  once  passed  on  it 64  94 

Findings  and  sentence  of  Post  Court  Martial  must  be  ap 
proved  by  a  majority  vote  of  the  Post,  subject  to  an  ap 
peal.  (Note.) 64  94 

For  dishonorable  dismissal  must  be  approved  by  the  De 
partment  Commander.  (Note.) 64  94 

The  Commander-in-Chief  may  refuse  to  order  a  Court  to 

try  certain  charges  and  specifications 65  94 

"Conduct  unbecoming  an  officer  and  a  gentleman,"  mean 
ing  of 65  94 

Accused  can  not  be  suspended  from  his  rights  as  a  mem 
ber  of  his  Post,  pending  trial 66  97 

Accused  may  or  may  not  be  present  during  trial.     If  he 

willfully  absent  himself,  trial  shall  proceed 66  97 

The  senior  officer  shall  preside 68  99 

Changed.     See  Rule  V,  Court  Martial.      (Note.) 36  50 

Department  Commander  may  (shall)  designate  who  shall 

preside 68  99 

If  sentence  is  inadequate,  the  reviewing  officer  may  re 
turn  for  revision 73  108 

Junior  Vice  Commander  of  Department  may  be  appointed 

on  the  Court 107  137, 


206  INDEX    AND    SYLLABUS 


COURT  MARTIAL— CONTINUED.  OPINION.     PAGE. 

Commander-in -Chief  convenes  the  Court  for  the  trial  of  a 

member  of  the  National  Encampment no  140 

Same,  if  Department  Commander  is  the  accuser 1 10  140 

The  person  who  signs  the  charges  is  the  accuser no  140 

Official  rank  not  a  ground  for  challenge 123  151 

Immaterial  who  prefers  the  charges ;  may  be  a  suspended 

member 123  151 

Specifications — form  of,  and  what  they  should  contain  ...   123  151 

(See  Rules  for  Court  Martial.) 187 

Commander-in-Chief  may  exercise  his  discretion  and  refuse 

o  convene  a  Court 124  152 

If  a  Post  deem  charges  too  trivial  for  trial  by  Court  Mar 
tial,  may  appoint  COURT  OF  INQUIRY.  (Note.) 124  152 

No  jurisdiction  in  matters  that  have  no  connection  with  the 

Grand  Army  of  the  Republic 1 25  153 

Defendant  must  be  in  such  position  that  he  may  be  able  to 
attend  the  trial,  if  he  so  desires,  before  a  Court  can  have 

jurisdiction 143  168 

Sentence,  how  promulgated.     See  Rule  IV,  Court  Martial  185 
Can  not  try  one  who  is  absent  serving  a  sentence  of  im 
prisonment.     Decision  XIX 182 

Absence  of  accused  by  reason  of  confinement  under  civil 
jurisdiction  can  not  be  considered  willful.  Decision 
XIX 182 

ID 

DEPARTMENT— 

Department  officers  failing  or  refusing  to  perform  their 
duties  may  be  placed  in  arrest  by  Commander-in- 
Chief  8  17 

An  Acting  Department  Commander  may  be  appointed  by 

the  Commander-in-Chief 8  17 

Where  Department  officers  are  removed  the  Council  of 
Administration  shall  convene  for  the  election  of  offi 
cers  8  17 

When  department  has  failed  for  three-quarters  of  a  year  to 
forward  reports,  the  Commander-in-Chief  may,  with 
the  consent  of  the  Council  of  Administration,  revoke 
the  Charter.  (See  Note.) 8  18 

Department  Officers  hold  their  offices  until  their  successors 

are  installed 9  21 

Commander-in-Chief  shall  order  Department  Commander 
to  perform  any  neglected  duty,  and  on  his  failure  to 
obey  may  take  jurisdiction  of  the  Department 9  22 


OF   OPINIONS.  207 


DEPARTMENT— CONTINUED.  OPINION.     PAGE. 

Permanent  Department  can  not  be  changed  to  a  Provis 
ional  Department 10  22 

Department  Officer  does  not  forfeit  his  office  by  reason  of 

any  misconduct  of  his  Post 13  27 

Department  having  made  out  and  mailed  a  report,  has  a 
a  right  to  suppose  that  it  has  been  received,  in  the  ab 
sence  of  any  notification  to  the  contrary 49  64 

Department  may  send  report  at  the  last  moment  before 
the  Encampment  meeting,  or  it  may  be  sent  by  the 
hands  of  the  delegates 49  64 

Officers  must  be  installed  before  they  can  act  as  such 90  126 

Department  Officer  may  also  be  an  officer  of  his  own  Post  107  137 

Same * 127  155 

DEPARTMENT  COMMANDER— 

May  detail  Staff  Officer  to  receive  one  into  the  Order. ...        2  9 

May,    by  consent  of    Council   of    Administration,  annul 

Charter  of   Post 8  17 

May  be  placed  in  arrest  for  neglect  or  refusal  to  perform 

his  duty 8  17 

Appeals  from 12  26 

Does  not  forfeit  his  office  by  reason  of  any  misconduct  of 

his  Post 13  27 

May,  in  his  discretion,  re-admit  dropped  members 42  56 

Same 108  138 

Same 115  143 

Same 116  145 

Can  not  prescribe  plan  for  observation  of  Memorial  Day. .     48  61 

May  suspend  officer  from  the  performance  of  his  official 

duties 66  97 

May  (shall)  designate  the  President  of  Department  Court 

Martial 68  98 

As  reviewing  officer,  may  return    proceedings    of    Court 

Martial  for  revision 73  108 

May,  on  information  that  an  election  of  Post  Commander  is 

illegal,  postpone  installation  until  investigation  is  had.  .76  ill 

May  annul,  or  cause   to  be  annulled,  illegal  proceedings 

of  a  Post 95  129 

Can  overrule  the  decisions  of  a  Post  Commander  without 

an  appeal  having  been  taken 95  1 29 

Department  Commander  alone  responsible  for  the  organ 
ization  of  a  new  Post,  and  he  may  grant  or  reject  the 

application  regardless  of  any  existing  Post 130  156 


208  INDEX    AND    SYLLABUS 


DEPARTMENT  COMMANDER— CONTINUED.  OPINION.     PAGE. 

Department  Commander  has  no  power  to  annul  a  ballot, 
or  to  inquire  into  the  motive  of  those  who  vote  to  reject 
an  application  .  61  84 

Department  Commander  may  communicate  countersign. 

Decision  IX,  Commander-in-Chief 175 

Office  of,  can  not  be  declared  vacant  by  reason  of  his  ab 
sence  from  the  Department.  Decision  XV 179 

Is  entitled  to  the  honors  of  his  office.     Decision  XV 179 

DEPARTMENT  ENCAMPMENT— 

Rules  and  Regulations  governing 18  31 

The  term  of  office  of  delegates  to  Department  Encamp 
ment  is  from  January  I  to  January  I 18  32 

Credentials  should  be  forwarded  to  the  Assistant  Adjutant 

General 18  32 

When  reports  are  sent  to  the  Assistant  Adjutant  General, 
even  though  not  received,  delegates  are  entitled  to  their 
seats 49  64 

No  member  or   delegate  elected    subsequent  to  the  last 

stated  meeting  in  the  year  eligible  to  a  seat 51  66 

Vacancies  may  be  filled 51  66 

Members  must  be  in  good  standing  in  their  Posts 70  101 

All  members  in  good  standing  eligible 81  119 

No  change  in  the  membership  subsequent  to  the  time  of 

the  election  can  affect  the  number  of  representatives..      82  119 

The  return  of  Post  membership  next  preceding  the  election 

shall  govern  as  to  the  number  of  delegates 82  120 

Rules  and  Regulations  on 1 8  31 

Where  a  Post  is  entitled  to  only  two  delegates,  and  sends 

more,  extra  delegate  may  be  excluded 83  121 

Posts  organized  after  third  quarter  entitled  to  representa 
tives  96  131 

No  proxy  or  substitute  can  act  for  a  Post  Commander  at 

Department  Encampment 109  1 39 

Only  those  members,  or  alternates,  duly  elected,  who  are 
present  have  a  right  to  vote  at  a  meeting  of  the  Depart 
ment  Encampment 109  139 

Can  be  no  proxies  for  representatives 113  142 

Same 127  155 

Past  Provisional   Department  Commander  is  not   entitled 

to  a  seat  in  Department  Encampment 129  156 

A  member  of  Department  Council  of  Administration  who 
holds  a  valid  transfer  card,  may  hold  his  seat  in  De 
partment  Encampment 135  160 


OF   OPINIONS.  209 


DISCHARGE—  OPINION.      PAGE, 

Discharge — application  must  be  made  at  regular  meeting. 

Rules  and  Regulations }  12 

Dishonorably  discharged  members  may  be  re-admitted  on 
reformation,  his  application  being  first  approved  by  the 
officer  who  approved  the  sentence  of  the  Court  Martial.  24  37 

(See  Opinion  I,  Commander-in-Chief.) 173 

When  application    is  made  for  discharge  the  Post  must 

grant  the  discharge  if  the  applicant  is  in  good  standing.     45  59 

Discharge  may  be  delayed  long  enough  to  prefer  charges, 
but  if  charges  are  not  preferred,  it  is  compulsory  upon 
the  Post  to  grant  the  discharge (.5  1^9 

When  a  person  applies  for  a  withdrawal  card,  and  a  dis 
charge  is  given  and  accepted,  the  applicant  can  not 
afterward  claim  that  it  was  a  mistake  on  his  part,  and 
demand  a  transfer  card 61  84 

The  only  method  of  leaving  the  Post  honorably  is  by  dis 
charge  or  transfer  card  62  87 

Dropped  members  can  not  be  considered  as  dishonorably 

discharged 75  1 10 

Dishonorably  discharged  members  are  such  as  have  been 

convicted  and  sentenced  by  Court  Martial 75  1 10 

Where  transfer  is  asked,  and  discharge  is  granted  instead, 

discharge  is  void,  and  membership  is  not  changed 84  122 

Discharge  granted  at  the  same  meeting  at  which  applica 
tion  therefor  is  made,  is  void 84  122 

It  is  a  Comrade's  right  to  apply  for  a  discharge,  and  if  he 

be  in  good  standing  Post  must  grant  it 88  125 

Application  for  a  discharge  may  be  withdrawn 88  125 

A  Comrade,  honorably  discharged,  re-admitted,  how....    115  143 

DISMISSAL— 

Must  be  by  sentence  of  Court  Martial i  7 

Same 143  168 

DROPPED  MEMBERS— 

One  who  has  been  dropped  is  no  longer  a  member,  and 

the  Post  has  no  power  to  remit  his  dues 26             38 

Dues  of  dropped  members  can  not  be  remitted 26             38 

Post  funds  can  not  be  used  to  reinstate  dropped  member.  26             38 

Dues  must  be  paid  before  he  can  be  re-admitted 26             38 

Dropped  member  can  not  join  a  new  Post  as  an  initiate, 

and  is  ineligible  for  membership  in  existing  Post 315             48 

Same.     Decision  XVII,  Commander-in-Chief 181 

Same.     Decision  XVIII,  Commander-in-Chief 182 

14 


210  INDEX    AND    SYLLABUS 


DROPPED  MEMBERS— CONTINUED.  OPINION.     PAGE. 

A  Comrade  who  has  been  dropped  for  non-payment  of 
dues  can  only  be  reinstated  by  the  Post  which  dropped 
him 35  48 

Can  only  be  re-admitted  to  membership  by  vote  of  the  Post 

which  formerly  bore  his  name  on  the  roll 35  48 

If  the  Post  to  which  he  belonged  disbands,  he  may  be  ad 
mitted  to  another  Post  by  Department  Commander 42  56 

Same 108  138 

Same " 115  143 

Same 116  145 

Dropped  members  can  not  be  regarded  as  dishonorably 

discharged 75  no 

May  be  organized  into  a  new  Post  by  Department  Com 
mander,  when 1 1 6  145 

Living  in  another  Department  may  be  reinstated 1 18  148 

One  twelve  months  in  arrears  must  be  dropped.     Decision 

VIII,  Commander-in-Chief 176 

When  a  Comrade  is  dropped  the  Quartermaster  must  re 
port  it  on  next  quarterly  report.  Decision  VIII,  Com 
mander-in-Chief 1 76 

Not  eligible  to  membership  in  another  Post.  Decision 
XVII 181 

Election  and  muster  of  dropped  members  illegal.  De 
cision  XVII .  181 

Same.     Decision  XVIII 182 

Reinstatement  subsequent  to  muster  in  another  Post  does 
not  render  valid  the  election  and  muster.  Decision 
XVII 181 

DUES— 

Of  dropped  member  can  not  be  remitted 26  38 

Applies  only  to  annual  tax 63  91 


ELECTIONS— 

Where  the  Post  has  a  By-Law  requiring  all  members  to 
vote  when  present,  and  an  election  is  held  and  some  of 
the  members  do  not  vote,  and  the  By-Law  is  not  enforced 
after  the  Commander's  attention  is  called  to  the  fact, 
the  election  is  void 58  79 

In  an  election  votes  given  for  an  ineligible  person  must  be 

excluded  in  the  count 59  80 

Parliamentary  law  to  govern 59  80 


OF   OPINIONS.  211 


ELIGIBILITY  TO  MEMBERSHIP—  OPINION.      PAGE* 

Rules  and  Regulation.     Cited 4              13 

Involuntary  service  in  the  Rebel  army  forms  no  exception 

to  Section  I,  Art.  IV,  Chap.  I,  Rules  and  Regulations..  4             12 

Same 114            142 

Same 136           161 

Paymaster's  clerk  in  the  navy  is 6              15 

Scouts  in  the  Union  army,  if  they  were  civilians,  are  not 

eligible 17             31 

Same 131            157 

If  a  person,  once  dishonorably  discharged  from  the  ser 
vice,  has  the  order  revoked,  and  he  is  reinstated  in  the 
army,  and  is  afterward  granted  an  honorable  discharge, 

is  eligible 22             35 

All  persons  who  are  eligible  should  not  necessarily  be 

admitted 22             35 

A  woman  who  served  as  u  Daughter  of  the  Regiment  "  is 

not  eligible  to  membership 31              43 

Same,  as  to  woman  who  served  the  army  in  an  im 
portant  position 104            136 

Dropped  member  not 35             48 

Officers  of  revenue  service  not 47             60 

Same 97            132 

Enlistment,  muster,  and  honorable  discharge,  necessary.  .131  157 
Persons  twice  rejected  by  same  Post  not.      (Changed  by 

Rules  and  Regulations.) 53              70 

One  who  deserts  his  company  and  joins  another,  not..  -.54  72 
Eligibility  depends  upon  whether  or  not  the  applicant  can 

present  an  honorable  discharge 69            100 

Same 126            154 

Same 131            157 

Same 132            158 

•  Clerk  to  army  Paymaster,  not 50             66 

Applicant  who  is  rejected  by  one  Post,  and  who,  before 
the  expiration  of  the  time  fixed  by  the  Rules  and  Regu 
lations,  applies  to  another  Post,  and  is  there  elected  and 
mustered,  was  ineligible,  his  election  is  void,  and  he 

should  be  dropped  from  the  rolls 72            104 

Service  in  revene  marine  is  not  sufficient 97            132 

Same.     Decision    V,   Commander-in-Chief 175 

Contract-Surgeon,  not 99            133 

Enlistment  without  muster,  not 131            icy 

Commission  without  muster,  not 131            157 

Quartermaster's  clerk,  not 131            157 

One  who  is  taken  out  of  the  service  by  writ  of  habeas  cor- 

P™,  is 133            159 


212  INDEX    AND    SYLLABUS 


ELIGIBILITY  TO  MEMBERSHIP— CONTINUED.               OPINION.  PAGE. 

One  who  served  with  State  regiment.  Decision  VI,  Com- 

mander-in-Chief 1 75 

Post  can  not  admit  any  one  declared  by  Rules  and  Regu 
lations  to  be  ineligible.  Decision  XVIII 182 

EXPULSION— 

Can  not  be  without  trial I  7 


FUNERAL— 

Assessment  for  expenses  of,  void 91  127 

Authorized  to  order  an  attendance  at,  must  be  confirmed 
by  By-Laws  of  Post.  Decision  XII,  Commander-in- 
Chief 177 

FUNDS— 

Post  funds  can  not  be  used  to  reinstate  dropped  member..     26  38 

Of  the  Grand  Army  of  the  Republic  can  not  be  used  for 

the  support  of  ex-Rebel  soldiers 140  166 


C3- 

GRADES— 

Abolished 5  14 

Member  under  grade  system  admitted 115  143 


HONORABLE  DISCHARGE— 

Difference  between  "  transfer  "  and  "  discharge  " 35  48 


I 

INITIALS— 

"  G.  A.  R."  may  be  used  by  a  Comrade  on  his  business 

sign 38  53 

INSIGNIA  OF  RANK— 

The  uniform  worn  in  the  service  may  be  worn ;  if  so  worn 

the  accustomed  insignia  of  will  be  retained 1 6  29 

Same.     Settled  by  Rules  and  Regulations 1 6  30 


OF    OPINIONS.  213 


INSPECTORS—  OPINION.        PAGE. 

Duty  of  ......................................  ......       8  17 

Can  not  be  appointed  by  Provisional  Department  Com 

manders  .........................................      14  28 

INSPECTOR-GENERAL— 

May  nominate  assistants  .............................      14  28 

INSTALLATION— 

Officers-elect  can  not  act  in  official  capacity  without  being 

installed  ........................................     90  126 

Same  .........................................      102  134 

Installation  in  December,  void  .......................     98  132 

Senior  Past  Post  Commander  may  install  ..............    102  134 

Officer  detailed  to  install  has  no  authority  until  he  reports 

for  duty  ..........................................    102  134 

INVESTIGATING  COMMITTEE— 

Report  of,  on  application  for  membership,  must  be  in  writ 

ing  and  on  the  application  ..........................      37  51 

Post  can  not  act  on  the  verbal  report  of  investigating  com 

mittee  ;  if  action  is  taken,  illegal  ....................      37  51 

Where  verbal  report  has  been  acted  on,  and  applicant  is 

rejected,  ballot  may  be  renewed,  when  ...............      37  51 

Where  the  committee  reports  without  having  seen  the  ap 

plicant,  and  the  ballot  has  been  taken,  ballot  should  be 

declared  void  .....................................     57  78 

Committee  should  see  the  candidate  in  person  ..........      57  78 


JUDGE  ADVOCATE— 

Should  be  detailed  with  reference  to  his  qualifications  ...      36  qo 

Appointed  by  Post  Commander.     Rule  V,  Court  Martial.     36  50 

JUDGE  ADVOCATE-GENERAL— 

Opinions  of,  having  been  adopted  by  the  National  Encamp 

ment,  irrevocable,  except  by  the  National  Encampment     80  119 

IM: 

MEMBERS— 

If  a  man  is  not  legally  introduced  into  the  Order,  he  is 

not  a  member  ....................................  1  1              23 

Same  ..........................................  72            104 

Same.     Decision  XVII  ..........................  181 

Same.     Decision  XVIII..  182 


214  INDEX    AND    SYLLABUS 


MEMBERS— CONTINUED.  OPINION.     PAGE. 

Private  members  of  a  Post  are  not  to  be  held  responsible 

for  the  neglect  of  their  officers - 13  27 

Members  suspended  are  debarred  from  the  meetings  of 

the  Post 16  29 

Members  of  disbanded  Posts  who  were  in  good  standing 
at  disbandment  may  have  transfer  cards  from  Assistant 
Adjutant-General 19  33 

Dishonorably  discharged,  re-admitted .    24  7 

Member  can  not  be  reinstated  after  death 26  38 

The  dues  of  a  dropped  member  can  not  be  remitted 26  38 

Dropped  member  can  not  be  reinstated  from  Post  funds.  •      26  38 

Dropped  member  can  not  join  a  new  Post  as  an  initiate. .      35  48 

Same.     Decision  XVII 181 

Same.     Decision  XVIII 182 

Dropped  member  can  only  be  reinstated  by  Post  which 

dropped  him 35  48 

As  to  re-admission  of  dropped  member 115  143 

Same 1 1 6  145 

Membership  from  one   Post  to   another  can  be  only  by 

transfer  or  honorable  discharge 35  48 

Member  in  arrears  can  leave  his  Post  only  by  dishonor 
able  discharge,  or  by  being  dropped 35  48 

May  use  initials  "  G.  A.  R."  on  business  sign 38  53 

Member  holding  transfer  card  not  liable  for  dues 39  54 

Members  dropped  for  non-payment  of  dues,  if  their  Post 

disbands,  may  be  again  admitted  to  the  Order,  how..  •     42  56 

Member  can  only  leave  his  Post  honorably  either  by  dis 
charge  or  transfer 62  87 

A  member  of  a  Post  can  not  absolve  himself  from  his  duties 
to  that  Post,  non-attendance  or  non-payment  of  dues  will 
not  release  him 62  87 

Can  not  join  a  second  Post  until  released  from  the  first.          62  87 

Member,  against  whom  charges  have  been  preferred,  can 

not  be  suspended  before  decision  of  the  case 66  97 

A  member  once  mustered,  though  unfit  for  membership, 
would  remain,  and  can  not  be  stricken  from  the  roll 
except  for  some  subsequent  offense 72  104 

•Membership  is  not  changed  when  transfer  is  asked  for 

and  discharge  is  granted  instead 84  122 

Re-admission  of.     If  a  member  under  the  grade  system 

it  must  be  by  application  and  muster 115  143 

If  on  honorable   discharge   must   be   on   application  and 

taking  anew  the  obligation 115  143 

Standing  of  Charter-member  can  not  be  called  in  question 

by  Post  Commander 1 1 6  1 45 


OF   OPINIONS.  215 


MEMBERS— CONTINUED.  OPINION.     PAGE. 

Member  of  another  Department  can  only  be  re-obligated 

by  a  Post  Commander  specially  detailed 1 20  149 

MEMBERSHIP- 
HOW  changed  from  one  Post  to  another 3^  48 

Terminated,  how 72  108 

MEMBERSHIP  ELIGIBILITY— 

See  ELIGIBILITY  TO  MEMBERSHIP, 

MEMORIAL  DAY— 

Observance  of,  obligatory 48  61 

Private  circumstances  may  excuse  a  Comrade,  but  a  Post 

that  fails  or  refuses,  should  be  subjected  to  discipline..     48  61 

Where  a  Post  fails  to  observe  the  day,  it  is  not  obligatory 

on  a  member  of  the  Post 48  61 

The  manner  or  form  of  observance,  left  to  the  Post 48  6l 

Neither  Commander-in-Chief  or  Department  Commander 

have  authority  to  prescribe  a  plan  for  observance  of . . .     48  6 1 

MUSTER-IN  FEE— 

Not  required  by  Rules  and  Regulations  to  accompany  the 

application 2  9 

Post  by  By-Law  may  require  it  to  accompany  the  applica 
tion  2  9 

When  paid,  becomes  the  property  of  the  Post 2  9 

May  be  remitted  by  the  Post 2  9 

Post  must  have  a  regular  and  uniform  muster-in  fee  for  all 

applicants 86  1 23 


NEW  CHARTERS— 

On  abolishment  of  districts 40  55 

Should  have  been  granted 46  .55 

Should  contain  only  the  names  borne  on  the  old  one. ...  40  55 

NATIONAL  ENCAMPMENT— 

National  Encampment  alone  has  power  to  alter  or  amend 

the  Regulations s  9 

Same 72  104 

May  suspend  any  section  for  the  time  being 2  9 

National  Council  of  Administration  are  members  of 12  25 

Appeals  to,  how  taken 12  25 


216  INDEX    AND    SYLLABUS 


NATIONAL  ENCAMPMENT— CONTINUED.                          OPINION.  PAGE. 

Representatives  to,  number  from  each  Department 20  33 

Where  reports  have  been  sent  but  not  received,  delegates 

admitted 49  64 

Past  Department  Commanders  members 70  101 

Members  of  must  be  in  good  standing 70  101 

A  Past  Department  Commander,  though  a  member' of  a 
Post  in  another  Department  than  that  of  which  he  was 

Commander,  is  a  member  of  National   Encampment...  87  124 


o 

OBLIGATION— 

Can  not  be  read  to  the  recruit  before  he  is  mustered  ....      43  57 

OFFICES  AND  OFFICERS— 

Officers  hold  their  positions  until  their  successors  are  in 
stalled  9  21 

Members  of  National  Council  of  Administration  are  Na 
tional  Officers  of  the  Grand  Army  of  the  Republic. ...  12  25 

Department  officer  does  not  forfeit  his  office  by  reason  of 

the  misconduct  of  his  Post 13  27 

Officer  does  not  forfeit  his  position  by  absence 23  36 

May  be  punished  by  fine  if  provided  for  by  By-Laws 23  36 

Penalty  against  must  be  recovered  through  Court  Martial.      23  36 

Continued  neglect   of   duties  of  the  office  would  furnish 

ground  for  prosecution  without  any  By-Laws 23  36 

All  members  are  eligible  to  office 81  119 

Same.     Rules  and  Regulations 81  119 

Must  be  installed  before  acting  as  an  officer 90  126 

Same.     Rules  and  Regulations 90  126 

Same 102  134 

Installation  in  December,  void 98  132 

Officer  detailed  to  install  has  no  authority  until  he  reports 

for  duty 102  134 

Officers  elected  to  fill  a  vacancy,  and  who  served  to  the 
end  of  the  term  for  which  they  were  elected,  are  enti 
tled  to  the  honors 106  137 

When  Commander  and  Vice-Commander  are  absent  from 

the  Post  meeting,  the  Post  elects  pro  tempore 121  149 

When  Vice-Commanders   are  absent,  Commander  details 

to   fill  vacancy 121  149 

One  who  resides  outside  of  the  limits  of   his   Department 

is  eligible 1 28  155 


OK    OPINIONS.  217 


OFKICES  AND  OFFICERS— CONTINUED. 

See  Contra.,  Provisional  Commander 23  36 

No    officer  can   set   aside   the   provisions   of    Article    IV, 

Chapter  V.    Opinion  III,  Commander-in-Chief 1 74 

OPENING  CEREMONIES— 

Head-coverings 1 6  29 


PARLIAMENTARY  LAW— 

Governs  in  elections  in  the  Grand  Army  of  the  Republic. .      59  80 

PAST  DEPARTMENT  COMMANDER— 

May  sit  as  member  of  Department  or  National  Encamp 
ment  so  long -as  he  is  in  good  standing  in  his  Post..  .  70  101 

Though  a  member  of  Post  in  another  Department,  mem 
ber  of  National  Encampment 87  124 

Not  a  member  of  Department  Encampment 87  124 

When  he  accepts  discharge,  he  loses  his  position  as  a  Past 

Department  Commander 94  128 

A  Past  Post  Commander  joining  a  Post  of  another  De 
partment,  is  not  entitled  to  a  seat  in  the  Department 

Encampment  of  the  last  Department 1 1 1  141 

Same 112  141 

PAST  POST  COMMANDER— 

Does  not  lose  his  standing  as  a  Past  Post  Commander  by 

joining  another  Post 93  1 28 

One  who  serves  for  the  period  for  which  he  was  elected 

entitled  to  the  honor 106  137 

Past  Post  Commander  who  has  been  dropped  is  not  en 
titled  to  the  honors.  Decision  IV,  Commander-in-Chief.  .  174 

PENALTIES— 

Post  may  provide  By-Law  that  absence  of  officers  may  be 

punished  by  fine > 23  36 

Penalties  must  be  fixed  by  Court  Martial I  7 

Same 23  36 

PER  CAPITA  TAX— 

Supplemental  reports  should  be  made,  when 55  73 

Must  be  assessed  on  all  alike 60  82 

Can  not  be   remitted  except  as  provided   by   Rules   and 

Regulations 60  82 


218  INDEX    AND    SYLLABUS 


PER  CAPITA  TAX— CONTINUED.                                          OPINION.  PAGE 

Assessed  by  Department  Encampment 144  169 

Post   is  liable  for  the  quarter  in  which  it  was  organized. 

Decision  VII,  Commander-in-Chief 176 

POST— 

May  remit  the  admission  fee  in  case  of  one  who  has  for 
warded  the  same  and  becomes  unable  to  join  the  Post. .        2  9 
Can  not  impose  any  restrictions  upon  the  right  of  a  Com 
rade  to  demand  a  transfer  card,  in  the  form  of  a  fee  or 

otherwise 3  n 

May  fix  the  amount  of  the   initiation  to  be  paid  by  new 

members ....    5  14 

May  exclude   suspended  members  from  the   meetings   of 

the  Post 1 6  29 

When  it  disbands  must  turn  over  property 19  33 

May   provide  by    By-Law  that    officers   absenting  them 
selves  from  meetings  shall  be  punished  by  fine 23  36 

Can    not    reinstate    a    former   Comrade    who   had    been 
dropped  for  arrearages,  and  who  died  after  his  name 

had  been  dropped 26  38 

Can  not  remit  the  dues  of  a  dropped  member 26  38 

Can  not  use  Post  funds  to  reinstate  a  member   26  38 

A  vote  of  the  Post  instructing  the  Commander  not  to  grant 

a  transfer  card,  is.  void 29  42 

Can  not  order  the  publication  of  any  sentence  of  a  Court 

Martial 30  42 

Shall  not   divulge  the  cause  or  means  of  the  rejection  of 

an  applicant  for  membership 30  42 

May,  at  the  request  of   a  Comrade,  inquire  into  the  char 
acter  of  that  Comrade,  and  read  the   evidence  to  the 

Post .     32  44 

Must  follow  the  mode  provided  in  the  Regulations.  Where 
the   Regulations  are   silent,  Post  may  provide   by   By- 

Law 33  46 

Can  not  hold  executive  sessions 34  47 

'Has  no  executive  powers 34  47 

Can  not  exclude  Department  officers 34  47 

May  consult  its  own   convenience  in  regard  to  admitting 

Comrades  visiting  from  other  Posts 34  47 

Can  not  act  on  verbal  report  of  investigating  committee.  .37  51 

Can  not  open   or  close  public  entertainment   according  to 

the  Ritual 4*  56 

Can  not  surrender  Charter  contingent  by  or  for  a  limited 

period 44  5^ 


OF   OPINIONS.  219 


POST — CONTINUED.  OPINMON.      PAGB. 

May  forfeit  its  Charter  by  failure  or  neglect  to  hold  month 
ly  meetings 44  c;8 

Should  make  supplemental  reports,  when ^ 

Where  investigating  committee  has  not  seen  the  candi 
date,  but  report,  and  a  ballot  is  had,  action  is  void 57  78 

Post  is  not  debarred  from  a  true  expression  of  their  opin 
ion  by  the  negligence  of  a  committee 57  78 

May  adopt  By-Law  requiring  all  members  present  to  vote 

on  all  questions  unless  excused 58  79 

Can  not  receive  one  to  membership  who  has  been  rejected 
by  another  before  the  expiration  of  the  time  fixed  by 
the  Regulutions 72  1 04 

Acting  within  the  Regulations,  the  muster  of  a  recruit 
would  conclude  the  Post  on  all  questions  left  by  the 
Regulations  to  the  Post 72  ,  104 

Post,  must  be  located 77  114 

Must  have  a  regular  and  uniform  initiation  fee,  and  can 

not  establish  different  fees  for  different  applicants 86  123 

Transactions  of  Post  void,  when  done  under  Commander 
pro  temper e  not  a  member  of  Post 86  123 

Can  not  levy  an  assessment  on  members  for  burial  pur 
poses 91  127 

Can  accept  the  resignation  of  the  Commander 95  129 

Organized  after  the  third  quarter  of  the  year,  is  entitled 

to  representation  in  the  Department  Encampment 96  131 

Can  not  install  officers  in   December 98  132 

Failure  to  make  Surgeon's  report  may  exclude  from  De 
partment  Encampment 98  132 

Can  not  change  its  records  except  to  correct  an  error. . . .    101  134 

May  adopt  Rules  of  Order 101  134 

Elect  Commander  pro  tempore  when  Commander  and  Vice 

Commanders  are  absent 121  149 

Consent  of,  not  necessary  for  the  organization  of  a  new 

Post 130  156 

Where  the  decision  or  action  of  the  Post  Commander  is 
in  violation  of  the  Regulations,  a  vote  of  the  Post  to 
sustain  him  does  not  cure  his  error 138  163 

Can  not  give  consent  to  the  withdrawal  of  an  application 

after  committee  has  reported  thereon 138  163 

POST  COMMANDER— 

May  require  application  for  a  transfer  paper  to  be  made 

in  writing 28  41 

Rules  and  Regulations  on 3  1 1 


220  INDEX    AND    SYLLABUS 


POST  COMMANDER— CONTINUED.  OPINION.     PAGE. 

It  is  the  duty  of  the  Post  Commander  to  transfer  or  dis 
charge  a  Comrade  on  his  application 29  42 

Where  the  Regulations  are  silent,  and  the  Post  has  not 
provided  by  By-Law  for  making  appointments,  Post 
Commander  shall  detail  or  appoint 33  46 

When  a  member  of  Department  Council  of  Administra 
tion,  and  accused  of  an  offense,  tried  by  a  Court  con 
vened  by  Department  Commander 46  59 

When  charges  are  preferred,  should  be  suspended  from 

official  duties 46  59 

Has  no  power  to  pardon  a  Comrade  convicted  by  sentence 

of  Court  Martial 64  94 

All  action  as  to  sentence  of  Court  Martial  taken  out  of  the 

hands  of  Post  Commander 64  94 

Same.     Rule  IV,  Court  Martial 185 

Has  no  power  to  suspend  a  member  of  his  Post,  against 
whom  charges  have  been  preferred,  before  the  decision 
of  the  case 66  97 

When  charges  are  made  to  Department  Commander  that 
election  of  Post  Commander  is  illegal,  installation  may 
be  postponed 76  1 1 1 

A  Commander-elect  is  not  disqualified  from  assuming  the 
duties  of  his  office  by  reason  of  any  suspicions  against 
his  integrity  as  a  Quartermaster 76  1 1 1 

Can  not  turn  over  his  command  to  a  Comrade  not  a  mem 
ber  of  the  Post.  If  he  does,  proceedings  are  void 86  123 

Can  not  order   second  ballot   until   he  has  announced   the 

result  of  the  first.     Decision  II,  Commander-in-Chief .  .  173 

Should  decide  points  of  order  in  a  Post  meeting 95  130 

Decisions  of,  may  be  overruled  by  Department  Commander 

without  an  appeal  having  been  taken 95  129 

Power  to  appoint  Junior  Vice  Department  Commander  on 

Court  Martial 107  137 

Can  not  call  in  question  the  standing  of  a  Charter-member.    1 16  145 

Must  have  special  detail  to  re-obligate  member  of  another 

Department 1 20  149 

When  absent  from  his  Post,  who  acts 121  149 

May  detail  officers  in  absence  of  Vice-Commanders 121  149 

May  communicate  the  countersign  to  a  Comrade  in  good 
standing,  either  at  a  meeting  of  the  Post  or  outside  of 

the  Post 1 34  1 60 

Same 141  167 

Can  not,  on  his  own   option,  order  Comrades  to  attend  a 

funeral.      Decision  XII,  Commander-in-Chief 177 


OF    OPINIONS.  221 


PROVISIONAL  DEPARTMENTS— 

Commander  of  must  reside  within  the  Department 23  36 

Organized  into  Permanent  Department  on  order  of   Com- 

mander-in-Chief 27  39 

Rules  and  Regulations 27  40 

Past  Provisional  Commander  not  entitled  to  seat   in  De-   * 

partment  Encampment.      Decision  XIV •. .  179 


Q 

QUARTERMASTER— 

Quartermaster  or  Quartermaster-Sergeant  may  make  the 
entry  of  "  Dropped"  members.  Decision  VIII,  Com- 
mander-in-Chief 1 76 

When  a  Comrade  is  dropped  Quartermaster  must  report 
it  on  the  quarterly  return.  Decision  VIII,  Command- 
er-in-Chief 176 

Responsible  for  moneys  collected  by  Quartermaster-Ser 
geant.  Decision  X,  Commander-in-Chief 177 


REBEL  ARMY— 

Service  in  excludes  from  membership  in  the  Grand  Army 

of  the   Republic 4  12 

Same 114  142 

Same 136  161 

RECORDS— 

Can  not  be  altered  except  to  correct  errors 101  134 

Presumed  to  be  correct 117  147 

REINSTATEMENT— 

Can  not  use  Post  funds  to  reinstate  dropped  member 26  38 

Dues  must  be  paid  before  dropped  member  can  be  rein 
stated  26  38 

Can  not  reinstate  one  who  is  dead 26  38 

One  who  has  been  dropped  for  non-payment  of  dues,  can 

only  be  reinstated  by  the  Post  that  dropped  him 35  48 

If  the  Post  to  which  a  dropped  member  had  belonged  dis 
bands,  may  be  reinstated  and  admitted  to  another  Post 

by  the  Department  Commander 42  ^6 

Same    108  138 

Same 115  143 

Same ••    116  145 


222  INDEX    AND    SYLLABUS 


REINSTATEMENT— CONTINUED.                                           OPINION.  PAGE; 

Living  in  another  Department  may  be  reinstated,  how. .  .    1 1 8  148 

Ballot  for  reinstatement  must  be  by  ball  ballot 142  168 

Dishonorably  discharged,  may  be,  how 24  37 

Dishonorably  discharged  member  re-admitted.     Decision 

I,   C4>mmander-in-Chief I  1 73 

REPORTS— 

Supplemental  reports  should  be  made,  to  show  the  true 
number  of  members  in  good  standing  for  the  quarter  to 

which  any  report  relates 21  34 

Same 55  73 

Of  investigating  committee  must  be  made  in  writing,  and 

on  the  application 37  51 

Post  can  not  act  on  the  verbal  report  of  investigating  com 
mittee  .* 37  51 

Where  verbal  report  has  been  acted  on  and  applicant  has 

been  rejected,  ballot  may  be  renewed 37  51 

If  reports  were   forwarded,   and  they  miscarried,  sender 

should  send  copy 49  64 

Where  reports  have  been  sent  but  not  received,  delegates 

may  be  admitted 49  64 

Failure  of  Post  to  make  any  report  required  will  exclude 

Post  from  Department  Encampment 98  132 

REPRESENTATIVES— 

Number  of  in  National  and   Department  Encampments..      20  33 
Post  organized  after  third  quarter  is  entitled  to  represen 
tation  96            131 

Post  failing  to  make  Surgeon's  report  when  required,  rep 
resentatives  are  excluded 98  132 

REVIEWING  OFFICER— 

The  opinion  of  is  final,  and  no  appeal  can  be  had 56  75 

Same 64  94 

Same 73  108 

Same 105  136 

Same....- 145  170 

RITUAL— 

Must  be  kep"t  secret 41  56 

Can  not  be  used  to  open  or  close  any  public  entertainment     41  56 

RULES  AND  REGULATIONS— 

The  National    Encampment   only  can   suspend   any  part 

thereof 2  9 

Post  must  pursue  the  mode  provided  in  the  Regulations. .     33  46 


OF   OPINIONS.  223 


RULES  AND  REGULATIONS— CONTINUED.  OPINION.  PAGE. 

Where  Regulations  are-silent  Post  may  provide  by  By-Law  33  46 

Section  i,  Article  VIII,  Chapter  II,  defined 33  46 

By-Law  requiring  all  members  to  vote  is  not  inconsistent 

with  Regulations 58  79 

The  National  Encampment  alone  has  power  to  alter  or 

amend 72  104 

Article  XV,  Chapter  V,  Rules  and  Regulations 72  105 

s 

SECRECY— 

Can  not  use  the  Ritual  to  open  and  close  a  public  enter 
tainment 41  56 


T 

TRANSFER  CARD— 

Comrade  may  demand  transfer  card 3  n 

Post  can  impose  no  restriction  upon  the  right  of  a  Comrade 

in  the  form  of  fee  or  tax  for  card 3  II 

Written  application  for  card  is  sufficient 3  II 

Rules  and  Regulations  concerning 3  n 

Assistant  Adjuant-General  to  grant  traasfer  cards  to  Com 
rades  of  disbanded  Post 19  33 

Rules  and  Regulations  concerning 13  27 

Commander  unist  grant  transfer  or  withdrawal  card  to  a 

Comrade  in  good  standing  when  applied  to 29  42 

Transfer  and  honorable  discharge,  the  distinction  between     35  48 

The  holder  of  transfer  card  not  liable  for  dues 39  54 

By-Law  fixing  fee  for  transfer  card  is  void    63  91 

After  presentation  and  muster  into  new  Post,  member  of 

jiew  Post. 67  98 

Conclusive  on  Post  which  issues  the  card 67  98 

Holder  of  transfer  card  may  visit  Posts 78  115 

May  become  Charter-member  of  new  Post 78  115 

Same 79  1 1 6 

Same 92  127 

Transfer  card  valid  for  one  year,  and  the  holder,  if  a 
member  of  Department  Council  of  Administration,  may 

act  as  such 135  160 

Must  be  presented  with  application   for   re-admission   to 

Post  membership 137  162 

Holder  of  transfer  card,  rejected  by  one  Post,  does  not 
have  to  obtain  consent  of  that  Post  to  join  another. 
Decision  XVI,  Commander-in-Chief 180 


224  INDEX    AND    SYLLABUS    OF    OPINIONS. 


TJ 

UNIFORMS—  0.-1NION.         PAGE- 

Rules  and  Regulations  concerning 16  30 


VOTING— 

Where  By-Law  requires  all  present  to  vote  on  all  questions 

unless  excused 58  79 

When  such  a  By-Law  is  not  enforced  the  vote  is  invalid. .      58  79 

May,  under  Section  I,  Article  III,  Chapter  II,  and  Sec 
tion  4,  Article  IV,  Chapter  V,  be  either  by  ballot,  viva 
voce,  or  hand 78  115 

For  reinstatement  must  be  by  ball  ballot.  (Overruling 
Opinion  LXXVIII,  and  approved  by  National  Encamp 
ment,  July,  1883) 1 42  1 68 


WITHDRAWAL  CARD— 

See,  also,  DISCHARGE  AND  TRANSFER  CARD. 

Where  a  Comrade  applies  for  a  withdrawal  card,  and  re 
ceives  and  accepts  it,  he  can  not,  after  he  has  applied 
for  re-admission,  claim  that  it  was  a  mistake  on  his 

part,  and  demand  a  transfer  card 61  84 

Department  Commander  has  no  authority  to  interfere  ....      61  84 

Rules  and  Regulations  concerning  discharge  or  withdrawal 

card.     Cited v 3  12 

WOMAN— 

A  woman  who  served  as  "  Daughter  of  the  Regiment " 
does  not  come  within  the  class  of  persons  eligible  to 

membership  in  the  Grand  Army  of  the  Republic 31  43 

A  woman  who  rendered  important  services  as  a  bearer  of 
dispatches,  is  not  eligible  to  membership  in  the  Grand 
Army  of  the  Republic 104  136 


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